摘要
日本著名刑法学家小野清一郎＂道义刑法＂的形成具有深刻的时代背景。这种以＂日本法理＂和国体观念为法哲学理论根据的刑法理论,赋予天皇统治以及对外扩张以法理基础,并为＂二战＂时解释和适用刑法来镇压民族独立运动、共产主义运动等提供了理论上的支持。＂二战＂后,＂道义刑法＂被团藤重光的刑法理论较多地继承,然而,在其刑法理论渐成通说的趋势下,却受到了平野龙一的强烈批判,二人理论观念的对峙奠定了行为无价值论与结果无价值论对立的基本框架。
It has a profound background in the formation of the morality of the criminal law created by Ono Seiichiro who is well-known as a Japanese criminal jurist. This kind of theory of criminal law which is based on Japanese jurisprudence and state system concept as its legal philosophy theory that gave legal basis to the emperor rule and external expansion, and that provided the theoretical support to explain and apply criminal law to crack down on national independence movements and the communist movements during World War Ⅱ. After World War Ⅱ, The morality of the criminal law was inherited mostly by criminal law theory of Dleto Shigehikaru, however, in the trend of his criminal law theory gradually into a common theory, it was highly criticized by Hirano Ryuichi. It has laid a basic framework of the antagonism between the two theories of Handlungsunwert and Erfolgsunwert due to the confrontation of two theoretical ideas.
出处
《刑法论丛》
CSSCI
2017年第4期387-412,共26页
Criminal Law Review
关键词
道义刑法
日本法理
道义责任论
行为无价值
The Morality of the Criminal Law
Japanese Jurisprudence
The Moral Liability Theory
Handlungsunwert
