论中止犯的减免处罚根据——类型并合说之提倡

On the Foundation of the Mitigation and Exemption of Punishment for the Discontinued Crime

从中止犯的立法沿革中可看到:中止犯属于未遂罪之一种,在减免处罚根据上,从重视主观可宽恕理由到重视政策性奖励,再到重视责任减少要素;在成立条件上,从只需"因己意"到兼需"防止其结果之发生",从只要求"自动防止"到兼顾"有效防止",从要求结果被有效防止到看重真挚的中止努力。根据类型并合说,应当通过违法性减少与责任减少的消长组合重构中止行为本身,并在值得政策激励、实现刑罚目的的标准下判断各种组合形式是否达到值得减免处罚的最低限度。作为并合载体的中止行为是一个类型概念,并非样态单一,而是充斥于违法性减少与责任减少的各种组合形式在政策因素的约束下集合而成的存在域之中。中止犯的成立,重要的不是违法性或责任降低了这种定性判断,而是当某一要素降低至既定程度时,需要其他要素至少达到何种程度来予以配合这种准定量判断。

It can be seen from the legislative evolution of the discontinued crime that the discontinued crime is a kind of attempted offences; on the foundation of the mitigation and exemption of punishment, the point changes from subjective forgiveness to policy incentives, and then changes to the reduction of liability; on the conditions of establishment,"automatic" is enough in the past but "prevent the result" is also needed now, and "automatic prevention" is enough in the past but "effective prevention" is also needed now, then the point changes from the result of the prevention to the serious act of suspension. According to the type combination theory, it is necessary to reconstruct the act of suspension itself through the combination of the reduction of violation and the reduction of liability, and then from the view of criminal policy and purpose of punishment to judge whether the various forms of combination meet the minimum limit for the mitigation and exemption of punishment. As a composite carrier, the act of suspension is a "general" type-concept, which is not a single form but filled with the combination of reduction of violation and reduction of liability under the constraints of policy factors. For the establishment of the discontinued crime, the qualitative judgment about the reduction of violation or liability isn't important, but it's important to do the quasi-quantitative judgment only when a given factor is reduced to a predetermined level and at least at which level other factors should be.