唐律“六杀”的启示：主观责任配置的另一种进路

The Enlightenment of Tang’s “Six Types of Homicide”:Another Way to Allocate the Subjective Responsibility

区分间接故意与有认识的过失对于理论和实践均有重大的意义,但是无论用比对二者差别的方法,还是用为间接故意划定范围的方法都难以做到。究其原因,是因为'故意—过失'的二元责任论是以概念的思维对主观责任作出区分,而现实中人们的主观心态存在着不同的类型,难以仅仅用高度抽象的两个概念进行定义。考察唐律中有关杀人罪的规定会发现,'六杀'的规定即为在主观责任配置上采用类型化方法的成功司法实践。有鉴于此,在故意与过失的界限难以划分的情况下,我们应当考虑建构类型责任补充当前刑法的概念责任。

Distinguishing between indirect intention and cognitive negligence is of great significance to both theory and practice,but it is difficult to do this either by comparing the difference between them directly or by delimiting indirect intention.The reason is that the'Intention—Negligence'dual responsible theory distinguishes subjective responsibility by the thinking model of concept,but in practice,subjective mentality varies from person to person,and it is difficult to define it by using only two abstract concepts.By studying Criminal Laws of Tang Dynasty we can find that'Six Types of Homicide'is a successful judicial practice about the allocation of subjective responsibility by using the typical method.Learning from the ancient Chinese criminal codes,we are supposed to consider the construction of typical responsibility to supple the conceptual responsibility of criminal law when it is difficult to make a distinction between intention and negligence.