需罚性在犯罪论体系中的功能与定位

The Function and Status of the Need of Punishment in the Systematic Theory on the Crime

作为对我国近年来发生争议的热点案件的一个理论回应,需罚性在犯罪论体系中的功能与定位被提出。我国目前的犯罪论体系均是以应罚性为中心展开的,缺乏对需罚性的判断,从而带来严重的理论与实践困境。犯罪论体系须认真对待刑法体系内的应罚性与刑法体系外的需罚性。从理论上,需罚性就是从刑事政策或宪法上判断有无刑罚处罚的必要性,是以预防的必要性为理论根据架设起刑事政策或宪法与刑法体系之间的桥梁,具有兼顾体系正义与个案正义的合目的性。同时,将需罚性导入我国犯罪论体系具有立法与司法基础,与我国实定法之间具有融贯性。我国应当建构应罚性与需罚性并重的犯罪论体系。

As a theoretical response to the controversial hot cases in China in recent years,the function and status of the need of punishment in the systematic theory on the crime are put forward.The existing plans concerning the systematic theory on the crime in China are all centered on the deservedness of punishment,without evaluating the need of punishment,thus bringing serious theoretical and practical predicaments.The deservedness of punishment of in the system of criminal law and the need of punishment outside the system of criminal law should be taken seriously in the systematic theory on the crime.Theoretically,the need of punishment is to evaluate whether there is the necessity for punishment from the criminal policy or the Constitution,which builds a bridge between the system of criminal law and the criminal policy or the Constitution by taking the necessity of prevention as the theoretical foundation,and enjoys the purposiveness of both system-based justice and case-by-case justice.Meanwhile,it enjoys legislative and judicial foundations to introduce the need of punishment into the systematic theory on the crime and it is compatible with the positive law of China.In China,a systematic theory on crime should be constructed which attaches equal importance to the deservedness and the need of punishment.