期待可能性论对预防刑罚观之实践问题的消解

Digestion Questions from General Preventive Penalty on Theory of Anticipated Possibility

期待可能性论与预防主义刑罚观是两个不同范畴、不同功能的刑法理论,二者出现了结合的态势。积极预防刑罚观导致刑法过度化问题,“立法要扩张,司法要谦抑”,需要运用责任论加以限制。责任理论也朝着机能化方向发展。期待可能性是现代责任论的核心。机能责任论作为一种升级版的规范责任论,在其理论框架中,期待可能性概念的地位虽然受到了一定限制,但并没有被完全否定,而是作为决定行为人对法律态度的一个根据被提出来。期待可能性依然具有刑法合理评价的价值,积极的一般预防主义本身也不排斥期待可能性,相反,应借助期待可能性论纠正一般预防观在实践中扩大打击面的弊端。我国立法规定为运用期待可能性论宽恕犯罪人提供了必要的空间,但现行教科书将期待不可能性作为无罪过事件并不科学。只有在刑事责任范畴中确定期待可能性论,才可以有效维持期待可能性论的两种评价功能。对网信犯罪的处理,可以进一步验证该理论的合理性。

The theory of anticipated possibility and the preventive view of punishment are two theories of criminal law with different categories and different functions, and the two have a combined trend. The problem of excessive criminal law caused by the active concept of prevention of criminal punishment needs to be limited by the application of the theory of responsibility. The theory of responsibility is also moving in the direction of functionalization. Anticipating possibilities is at the heart of modern responsibility theory. As an upgraded version of the normative responsibility theory, in its theoretical framework, the status of the concept of expected possibility, has been limited, but not completely denied, and it has been proposed as a basis for determining the actor's attitude towards the law. The possibility of expectation still has the value of a reasonable evaluation of criminal law, and positive general preventivism itself does not exclude the possibility of expectation;on the contrary, the theory of the possibility of expectation should be used to correct the shortcomings of the general concept of prevention in expanding the scope of attack in practice. Our legislation provides the necessary space for the use of the theory of the possibility of expectation to condone offenders, but it is not scientific for current textbooks to treat the impossibility of expectation as a not-guilty event. Only by identifying the theory of anticipatory possibility in the context of criminal responsibility can the two evaluative functions of the theory of anticipatory possibility be effectively maintained. The handling of cyberspace crimes can further verify the rationality of this theory.