论客观归责理论的构成要件辐射范围

The Protection Range of Elements of Crime in Objective Zurechnung

客观归责理论在德日刑法理论中饱受诟病,在我国却被奉为圭臬。该理论实质地判断因果关系,将结果的行为归属纳入到不法的体系判断之中是有待商榷的。构成要件辐射范围历来为争议的焦点所忽略,其本身具有的形式性是进行客观归责理论改造的出发点,首先应当对其进行学说史上的考察,对其发端的起因进行详细梳理;其次对其进行体系性扩张和主观归责视野下的限缩,尝试进行规范视角下的形式化和价值实现,为客观归责理论的整体变更奠定基础。

While it has been criticized by criminal law theories in Germany and Japan, Objective Zurechnung, the objective imputation theory has been regarded as a golden rule in China.Its judgment of causality based on consequences and its incorporation of behavioral attribution of consequences into the system judgment of wrongfulness are questionable. The issue of the protection range of elements, whose formality is the starting point for the transformation of objective imputation theory, has always fallen outside the focus of controversies. First of all, its theoretical history should be surveyed and its origin sorted out in detail. Secondly, limitations should be imposed from the perspective of systematic expansion and subjective imputation, and efforts made to formalize it and realize its value from the perspective of norms in order to lay a necessary foundation for the overall adaptation of the objective imputation theory.