全球结构下中国刑法结构的发展方向

The Development Direction of China’s Criminal Law Structure under the Global Structure

犯罪构成体系之争议在我国长期存在,近年来我国传统耦合式犯罪构成体系处于一个十分尴尬的地位。我国传统犯罪构成体系有其不足也存在其优秀合理之处。我国传统犯罪构成体系具有深厚的历史渊源,并作出了适合我国国情的改造。但是,单纯依靠目前犯罪构成体系无法对于犯罪进行合理的评价,其对于犯罪之具体刑事责任缺乏合理的认定。考虑我国《刑法》第5条之规定,应当赋予刑事责任以独立于犯罪与刑罚的地位,并以期待可能性为核心在刑事责任部分设置宽恕事由。宽恕事由不同于合法事由具有其独立的地位与作用。

Disputes over the crime constitution system have existed for a long time in China.In recent years, the position of traditional coupled crime constitution system is very awkward in China.The traditional coupled crime composition system has its shortcomings and its excellent and reasonable points. China’s traditional crime composition system has a profound historical origin, and has been reformed to suit the national conditions. However, only relying on the current system cannot make a reasonable evaluation of crime, and there is no reasonable determination of the specific criminal responsibility of the crime. Considering the provisions of Article 5 of China’s Criminal Law, criminal responsibility should be given a status independent of crime and punishment, and the reason for forgiveness should be set in the criminal responsibility part with the expectation of possibility as the core. The reason for forgiveness is different from the legal reason and has its independent status and function.