对未成年人“虞犯”行为干预的合法化基础

On Legal Basis of Intervention of Juvenile Delinquents

对未成年人违法犯罪行为从轻、减轻、免除刑罚或不认为是犯罪是各国国内法早已形成的共识。随着社会的发展、个人意识的觉醒以及国家对个人发展的重视,对未成年人不法行为进行法律规制逐渐为国家、社会及刑法学界所重视。那么,将原本不认为是犯罪、不应负刑事责任的行为纳入刑罚体系,是否符合刑罚的基本原则和具有合法化基础,是值得讨论的问题。从不处罚"虞犯"行为是否能消灭其违法性以及实现刑法的目的出发,结合近年来世界各国刑事政策的发展趋势,从刑罚处置"虞犯"行为的必要性、国家亲权、控制理论和未成年人人格发展等方面出发寻找国家干预虞犯行为有其合法化基础。

It has been a consensus among the domestic laws of various countries that juvenile delinquencies should be lightened, mitigated, exempted from punishment or not considered as crimes. With the development of the society, the awakening of self - consciousness and the attention to individuals＇ development paid by the state, regulating juvenile delinquency has been valued increasingly by the state, society and criminal law circles. Then, it is worth discussing whether the inclusion of the behavior which is not considered as a crime and should not bear criminal responsibility into the penalty system is in conformity with the basic principles of penalty and has legal basis. Is it possible to eliminate their illegality, to achieve the purpose of criminal law without punishments for juvenile delinquents？ Combined with the trend of criminal policy in the world in recent years, this paper is intended to look for the legal basis of the state intervention to regulate juvenile delinquents, from the aspects of necessity of punishing juvenile delinquents, parens patriae, control theory and personality develot^ment of iuveniles.