日本刑法中对责任能力的认定

The Judgment of Capacity for Criminal Responsibility in Japanese Criminal Law

在日本刑法中,责任能力的判断是法律判断。通说是将规范责任论具体化,以反对动机形成可能性、他行为可能性为基础的非难为基本内容来把握责任能力。行为人是否可能具有规范意识(辨认能力),是否可能控制自己的行为(控制能力),是进行责任能力判断的核心内容。因此,在司法实务中,当行为人基于精神障碍而犯罪时,需要对其辨认能力、控制能力进行规范判断。但是,在近来的学说中,出现了不以他行为可能性为前提的责任能力判断,即将行为人能够理解自己行为意义并作出选择的理性存在作为刑事责任能力的基础,对于控制能力则没有要求。在该学说之下,如何论证能够理解自己行为意义但不能控制自己犯罪冲动的重大精神疾病或者脑部异常患者具有免责余地,仍是今后有待研究的课题。

In Japan,the judgement on the capacity for criminal responsibility is a legal judgment.The general theory is to concretize the theory of normative responsibility.The basic content is that the accusation is based on the possibility of opposing motives and the possibility of other behaviors to determine the ability of responsibility.Therefore,whether the actor is likely to have normative awareness(capacity of recognition)or whether the actor is capable of controlling his/her own behaviors(capacity of control)is the core content of the judgment of capacity of recognition.Therefore,in judicial practice,when the perpetrator commits a crime due to a mental patient,it is necessary to make a standardized judgment on his or her capacity of recognition and capacity of control.However,in recent theories,there has been a judgment of responsibility ability that does not presuppose the possibility of other behaviors.Instead,the perpetrator is a rational existence capable of understanding the meaning of his or her actions and making choices.This is regarded as the basis for determining the capacity for criminal responsibility without any requirement for capacity of control.Under this kind of theory background,how to demonstrate that patients with major mental illnesses or brain abnormalities who can understand the meaning of their own behavior but cannot control their criminal impulse are eligible for immunity is still a subject to be studied in the future.