【作者】 王勇；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 本文以犯罪构成的本体为理论出发点,基于中国的与面向未来的两个视角,细致梳理了建国以来近五十年的三分犯罪构成理论发展史,重新审视了传统四要件理论的特点及其缺陷,提出了犯罪构成理论构建的价值前提,并在此基础上阐述了体系重构的初步设想。在我国,犯罪构成理论发展的历史可以分为三个阶段:即奠基阶段、改良阶段与改革阶段。在整体上,三分犯罪构成理论发展史可以从著述类型、研究过程、发展趋势以及学术品格四个维度进行评价;具体到每一阶段,又可以从研究的基本问题、简要的评价与思考以及相关的文献资料三个方面详尽阐明。我国通说的四要件理论,具有本体分解的构建方式、质量合一的成罪要件、平面化的解释机制以及犯罪构成与排除犯罪性行为的分治格局四大特点,并且在逻辑性、实用性和安全性上存在着缺陷。既然传统的犯罪构成存在着自身无法克服的缺陷,那么新体系的构建就必须在法的实质安全性、法的逻辑合理性和法的实务操作性的价值前提指导下进行,并且遵循从客观到主观的多次判断的体系性思路、正当化事由和谐融入的动态性思路,构建一种事实性要件——排除犯罪性事由不存在——可罚性的确证的三阶段的犯罪成立理论。更多还原

【Abstract】 The attitude and improvement of our traditional crime constitution theory have always been a hot issue in the academia. The thesis is based on the ontology of crime constitution. Adopting the perspectives of orientation on China and on the future, the thesis analyzes the developing process of traditional Chinese crime constitution, its characteristics and deficiencies, and suggests that the traditional theory of four main factors has unconquerable deficiencies and cannot realize theoretical perfection by improvement. Therefore, the construction of a new Chinese crime constitution theory should be on the premise of theory construction values.The thesis concentrates on the concept of“one central task, two basic points”. The“center”refers to the ontology of crime constitution, the theory of which can be understood from three respects. First, from the scope of the theory, crime constitution is the integration of system theory and essentiality theory, as well as the integration of form and content. Second, from the essence of the theory, crime constitution is a tool for interpreting laws. It is the integration of static and dynamic, and of use value and value. Third, from the status of the theory, crime constitution should return to normal, which means that its status in criminal law and effect in confirming crimes should be judged practically and realistically. The first basic point refers to the attention paid to our traditional crime constitution theory. The thesis is based on the existing crime constitution theory in China and attempts to solve our realistic problems. The second basic point is a prospect to the future, which means that the thesis aims to provide a feasible approach for future solutions of the problems.On the premises above, the thesis adopts the methods like comparative analysis, historical review and literature review. First, based on the criterion of the ontology of crime constitution, data of researches on crime constitution during the last five decades since the establishment of our country are collected. Then according to strict operating process, the history of crime constitution theory is divided into three phases: the foundation phase, the improving phase and the reforming phase. Meanwhile, the researches are valued from the four perspectives of research types, research procedures, developing trends and research characteristics. In terms of types, there is a lack of books and abundance of journal articles. The researches are less systematic and in-depth as a whole. As for procedure, the researches mainly transplant and imitate foreign crime constitution theories. With the rapid changes in our social political situation, the researches have experienced a developing process of affirmation—negation—the negation of negation. From the perspective of developing trend, there is a tendency in the academia to introduce German and Japanese crime theories and reconstitute those theories. As for the research characteristics, crime constitution is getting rid of the reliance on politics and obtaining more independent characteristics. In addition, nine criminal law textbooks from five authoritative scholars are selected for the research. Through the analysis of the crime constitution theory in these books, the development and limitations of criminal law textbooks and crime constitution theory are pointed out.The individual phases in the history of crime constitution theory can be expounded upon from the three perspectives of the basic research questions, brief comments and reflections and the related literature. In the foundation phase (1949--1982), the development of crime constitution theory experienced a“trilogy”process of initial setup (1949--1958), dreariness (1959--1976) and establishment (1977--1982). After this phase, the traditional Chinese crime constitution theory got its rudimentary form. In the improving phase (1983--1997), the researches on crime constitution theory were mainly theoretical explorations based on previous theories. Since the main investigations focused on the improvement of traditional crime constitution theory, these researches are called“one clue”. However, there were still scholars who disagreed with the improvement. Therefore, there were disputations among scholars on whether to maintain or break traditional theory. Although some of these disputations got reconciled on certain issues, the“three main disputing problems”still existed. In the reforming phase (1998--), approaches of the researches on crime constitution theory began to change from the reflection on essential elements to the reforming of the whole system. During this phase, the researches focus on four modes and nine approaches. Among the scholars in this phase, Professor Li has contributed a lot to the reforming direction of crime constitution theory with her precise and meticulous studies.The traditional crime constitution theory of“four main factors”is characteristic for its constitution form of ontology decomposing, crime accusing factors of quality and quantity combination, the explanation mechanism of complanation, and the dividing structure of crime constitution and eliminating criminal actions. The constitution form of ontology decomposing means that the traditional crime constitution theory regards crime as a whole and then decomposes crime actions into different parts for study according to the criterion of judging certain parts of crime actions as crime. In other words, the traditional theory divides different composing parts of crime actions into different factors of crime constitution. The crime accusing factors of quality and quantity combination means that under the division of the whole crime action, the four constituting factors should all display the characteristics of crime, which is the combination of quality and quantity, of fact and value, of subject and object, and of qualitative factors and quantitative factors. The explanation mechanism of complanation refers to the four factors in the whole crime constitution, which are crime object factors, crime objectivity factors, crime subjectivity factors and crime subject factors. These four factors are not layered, but of a parallel relation. It means that the four factors together constitute a factor congregation, namely the“complanation characteristics”of crime constitution. The dividing structure of crime constitution and eliminating criminal actions means that the criminal law in our country excludes the elimination of criminal actions from the study of crime constitution. This dividing structure experienced three developing phases in our country, which are total separation, seeming integration but actual separation, and close connection. In other words, as the researches go in-depth, the division of the justified particulars and the crime constitution are being weakened and the two are getting closer.The traditional Chinese crime constitution theory of the four main factors has deficiencies in logicality, practicability and security. In terms of logic, the theory is composed of crime object factors, crime objectivity factors, crime subjectivity factors and crime subject factors. However, this theory has a tendency of pre-concluding since it names these factors as“crime factors”before the crime is affirmed. In essence, this is the thinking pattern of value pre-posed, which goes against the guarantee of human rights and the realization of nomocracy. As for practicability, as a tool for interpreting laws, crime constitution should be based on the integration concept. However, the traditional theory is of the separation concept, which is less reasonable and operational. For security, the biggest problem of traditional crime constitution theory is that it only has crime entrance but without crime exist due to the division of crime constitution and the justified particulars, which may affect the realization of the justice goal of the criminal law.Through the comparision of crime constitution theory and major factors among three law systems, the present study points out that it exists the differences and similiraties in the crime constitution theory of three law systems. Namely, the three law systems share the same general factor, while constructing the different systematic structures. The fundemental reason lies in the different thinking processes of constructing. Therefore, if the crime constitution theory were regarded as the theoretical reorganization of crime affirmation condition and its function is to establish a basic theoretical thinking process by which the crime is convicted. Then the construction of crime constitution theory should be on the premise of the following values: real security of law, logical reasonableness of law and practical operation of law. Real security of law means when explaining the laws through crime constitution theory, the reasonable results can be found out, namely, the acts which should be punished by criminal law are convicted as crime, and the acts which should not be punished by criminal law are excluded. logical reasonableness of law means the crime constitution theory should meet the conditions of convicting crime, that is, the crime constitution should include all the crime affirmation conditions which work independently to convict crime. Besides, no one redundant factor exists and every factor plays an independent role. Practical operation of law means the crime constitution theory should be consise and easy to operate. It should satisfy the needs of common people, that is, people could understand it according to the common sense.There are drawbacks of logicality, security and operation in traditional crime constitution theory. These drawbacks are caused mainly be the theory itself, and can’t be changed by self-improvement. Hence, new crime theory system should construct a three-layer crime affirmation theory of actual factor—excluding the non-existence of crime particulars—confirmation of punishment on the premise of the three values mentioned above, guided by the systematic thinking process of judging from objective to subjective and dynamic thinking process of harmonious merging of the justified particulars.更多还原