犯罪概念的哲学思考

A Philosophical Review on the Concept of Crime

犯罪概念理论经历了从形式的概念到实质的概念,又从实质的概念到形式与实质相统一的概念,再从统一的概念到形式与实质相分裂的概念这样一个发展过程,成为刑法学的一大困惑。在这个问题上,外国刑法学最终走向了不可知论,而中国刑法学则滑向了形而上学唯物论。之所以出现这种局面,其原因在于到目前为止,中外刑法学都只是孤立、片面、静止地研究犯罪概念,不了解概念的相互联系和运动发展。犯罪概念是由先于刑法的社会物质生活条件所决定的,刑法的任务不在于解决犯罪概念问题,而在于运用已先于自己而存在的犯罪概念来作出判断。刑事司法的任务是在刑法判断的基础上作进一步的推理。犯罪概念的形成、运用犯罪概念所进行的刑法判断、以及运用犯罪概念和刑法判断所进行的刑事司法推理,是犯罪概念运动的一个完整过程,在这个过程中,犯罪作为一个概念它是统一的,不存在形式概念与实质概念之分,也不存在立法概念与司法概念之分。

The conceptive theory of crime, being a puzzle, had developments from an external concept to substantive concept, from substantive concept to united concept of form and substance, and then from united concept to separate concepts. On this problem, foreign criminal law theories have gone finally to the agnosticism and Chinese criminal law theories to the metaphysical materialism. The reason for this result is that Chinese and foreign criminal law theories by now have been studying the concept of crime separately, unilaterally and statically, not knowing the mutual relationship and the developments of concepts. The concept of crime is determined by the social material conditions prior to the criminal law. The task of criminal law is not to establish the concept of crime, but to make judgments with the concept coming into being prior to the criminal law. The task of criminal justice is to make inference, based on the criminal judgment. The coming into being of the concept of crime, the criminal judgment with the concept and the criminal inference based on the concept and criminal judgment together constitute the complete process of the development of the concept of crime. The concept of crime is united in this process. There is no division between external and substantive concepts, and neither between legislative and judicial concept.