中国语境下客观处罚条件的否定——兼议“丢失枪支不报罪”的罪责

Negation of objective punishment conditions in Chinese practice--Concurrently discussing“the crime of losing guns without reporting”

客观处罚条件由于缺少与之对应的主观要素,自诞生以来就面临着责任主义的质疑。现有的进路可分为三条。一是将其作为构成要件要素,问题在于无法回应责任主义的疑问;二是将其置于犯罪论的第四阶层,缺陷是破坏了犯罪论体系的结构;三是将其归入刑罚论的范畴,在德国刑法中,第三条进路是可行的。但在中国语境下,承认客观处罚条件会与犯罪概念相矛盾,也不符合中国刑法的语言表达。将丢失枪支不报罪的主观解释成故意不可行。行为人对严重后果存在预见可能性,履行结果回避义务能规范性实现违法阻却,因此应解释为过失。丢失枪支不报罪与交通肇事罪等过失犯罪具有相同的结构。将丢失枪支不报罪解释为过失犯实现了其体系性回归。

Due to the lack of corresponding subjective elements,objective punishment conditions have faced the challenge of responsibility doctrine since its birth.The existing approach can be divided into three.One is to consider it as a constitutive element.The problem is that it cannot respond to responsibility doctrine.The second is that it is placed on the fourth level of criminal theory,the flaw is that it destroys the structure of the criminal theory system.The third is to classify it into the category of penal theory.In German criminal law,the third approach is feasible.However,in Chinese practice,the recognition of objective punishment conditions will contradict the concept of crime,and it does not conform to the language expression of Chinese criminal law.The subjective element of the crime of losing guns without reporting is not intentionally.It is possible for the perpetrator to foresee serious consequences.And the result of the crime can be avoided in a legal manner,so the subjective element should be interpreted as negligence.The crime of losing guns without reporting and the crime of causing traffic casualties have the same structure.Explaining the crime of losing guns without reporting as a negligent crime realizes its system regression.