犯罪概念研究

【作者】 肖敏；

【导师】 陈忠林；

【作者基本信息】 西南政法大学 ， 刑法学， 2008， 博士

【摘要】 犯罪概念作为构建刑法学宏伟大厦的基石,具有基础性研究价值与意义,但由于对犯罪本质缺乏清晰地认识,致使犯罪概念犹如普洛丢斯变幻莫测的脸,难以确定。因此,正确认识犯罪的本质,以此为基础来确定科学的犯罪概念,用以指导刑事立法与司法实践。本文分为六大部分,具体如下:前言部分。简要介绍我国刑法学界对犯罪概念研究的概况,包括已达成的共识及存在的问题,并在此基础上,介绍本文的研究思路及研究方法。第一章主要对犯罪概念的起源进行历史回顾与考察,即对我国及国外古代的犯罪概念的形成历程予以考察。在我国,犯罪概念源起于西周,定型于春秋战国时期,其时,墨子提出“罪,犯禁也”,认为犯罪就是违反法律的行为,故而具有一定的合理性。而在国外,古巴比伦时期虽已有成文的法典,但尚未明确与框定具体的犯罪现象,不能区分一般民事违法行为与犯罪行为的不同特点与属性,因此无法形成一般性的犯罪概念,而在后来深受古巴比伦法影响与侵润的古希伯来法中,形成了凡是违背上帝意志的行为都是犯罪(sin)的观念雏形。在古代西方,直至罗马时期,始提出较为科学的犯罪概念,认为犯罪不是触犯神灵、上帝,也不仅仅囿于对个人的损害,而是侵害国家或社会集体的利益,并开始从程序上区分犯罪行为与民事违法行为,这表明罗马时期的人们对犯罪已有了较为深刻的认识,这也为其后的人们对犯罪实质概念地认识初步奠定了基础。而古印度因深受宗教的影响,一直到孔雀王朝的《摩奴法典》时期,才形成犯罪概念的雏形。第二章是对近现代刑法理论与刑事立法中犯罪概念诸学说的综述与评析。当下比较重要的一种分类形式是将犯罪概念分为形式概念、实质概念及混合型概念。形式概念是说明认定犯罪的法律标准,即犯罪是源于立法的规定,立法者认为是犯罪的就是犯罪,故而,无法限制立法者的权力,容易导致立法者的暴政。而实质概念则是阐明为何法律会将某些行为规定为犯罪,即立法者基于何种根据来界定犯罪,揭示犯罪的本质是实质犯罪概念的最为重要的任务之一。通过剖析已有的各种犯罪实质概念的学说后,我们将其归纳为三种类型:即客观危害说、主观恶性说及犯罪人人格说。三种学说虽有其合理性,但也有其不足之处。其中,客观危害说不能区分犯罪行为与一般违法行为,也不能说明处罚犯罪未遂的原因;主观恶性说对法律内涵并无界定,只强调对法律的遵守,易造成恶法亦法,从而导致立法者暴政;而犯罪人人格说中的人格与行为是割裂的,因而其不具有可测量性,容易导致打着社会防卫的旗号肆意践踏公民的基本人权。混合型的犯罪概念试图走折衷的道路,但却没有解决标准冲突时,究竟以哪一方面为准,最终可能会滑向形式概念或实质概念的极端。第三章是说明犯罪本质特征的。犯罪的本质特征是既为犯罪所共有又能区分罪与非罪的外显性、直观性的标志。据此考察我国刑法通说中犯罪的三大基本特征:社会危害性由于无法区分一般违法行为与犯罪行为,所以它不是犯罪的本质特征;刑事违法性标准也不能独立地界分罪与非罪,因此,也不能成为犯罪的本质特征;惟有应受刑罚处罚性才是犯罪的本质特征,它不但表明社会危害性已至犯罪的程度,可直观地将犯罪与其他违法行为区分开来,而且还是我们制定刑法、理解刑法的实质根据。因此,应受刑罚处罚性才是犯罪的本质特征。第四章是对犯罪本质的重新界定及阐述其对刑法理论的深远影响。由于人类的认识规律是由表及里、由外及内、由现象及本质的过程,因而我们必须从犯罪所特有且为犯罪所普遍享有的外部性标志,即本质特征入手,来揭示犯罪的本质。由于应受刑罚处罚性可说明国家发动刑罚权的正当根据及刑法作为独立部门法的缘由,故而,可从刑罚目的与刑法的调整对象视角来界定犯罪本质。刑罚作为最严厉的制裁措施,是以剥夺公民基本人权为内容的,国家发动刑罚的目的在于保护全体公民的基本人权。由此,刑罚不仅仅意味着法律后果,而且代表了一种社会关系,该社会关系实质系刑法所特有的调整对象。因此,可从刑法调整对象视角来进一步揭示这种社会关系。虽然刑法作为独立的部门法,和其他部门法相区别的外部性标志是刑罚,但划分刑法与其他部门法的标准并不是刑法的调整手段——刑罚,而应是其特有的调整对象,即国家法律制度与公民(犯罪人)个人的基本人权之间的关系。而国家法律制度又是对全体公民的基本人权予以保障的制度。因此,犯罪的本质就是对国家法律制度(或全体公民基本人权)的侵犯,即客观危害,这是从社会属性的角度来考察犯罪本质的。“犯罪是行为”是近代刑法理论的基本命题,故犯罪本质的基底应当立足于行为。近代以降,中外刑法学界主要有四种行为理论:即自然行为论、社会行为论、目的行为论与人格行为论。其中,自然行为论、社会行为论、目的行为论都无法解决罪前、罪后情节影响定罪量刑的问题,人格行为说虽然可以说明罪前、罪后情节,却无法限定行为的范围。我们认为,犯罪行为是行为人在与刑法所保护价值对立意志支配下利用客观条件作用于刑法所保护对象存在状态的过程,而犯罪行为作为犯罪构成四要件的有机统一体,其客观方面表现为客观危害,客观危害是基于行为人与法律对立的意志(主观罪过)而形成的,主观罪过决定着行为的性质与范围,在行为中居于核心地位,所以,犯罪行为必须以主观罪过来界定,只有具有主观罪过的行为才能认定为犯罪。由于主观罪过是行为人刑事责任能力的外现,即认识与控制能力的具体体现与运用,而人的认识与控制能力来源于社会实践,受诸多因素影响的,当在社会化不完善时易形成犯罪人人格,即行为人对刑法所保护价值的敌视、蔑视或漠视的态度。由此可知,犯罪人人格是犯罪本质的根源。综上,犯罪行为的客观危害(对全体公民人权或整体法律制度的侵犯)是从社会属性角度考察的犯罪本质;犯罪行为中所包含的支配行为人实施犯罪行为的与刑法所保护价值相对立的认识和意志状态(主观恶性或与刑法所保护价值相对立的意志)是从行为结构角度来考察的犯罪本质的;行为人敌视、蔑视、漠视刑法所保护价值的态度则是从行为人人格或者犯罪原因角度来考察犯罪本质的。犯罪本质的这三个方面相互联系、相互印证、互为表里,其中,客观危害与犯罪人人格都通过主观罪过联为一体,即犯罪人人格是前提,客观危害是基础,主观罪过是核心。在此基础上,笔者进一步阐述了重新界定后的犯罪本质对刑法基本原则、不同犯罪类型、刑罚轻重及刑罚功能等重大问题的影响。首先,因为犯罪的本质是对国家法律制度(或全体公民的基本人权)的侵犯,刑法为了保护全体公民的基本人权而迫不得已剥夺个别公民(犯罪人)的基本人权。因此,刑法不得已原则也应当作为刑法的基本原则之一,相对与刑法的其他基本原则,它是最上位的原则,罪刑法定原则、罪刑相适应原则都必须以刑法不得已原则为指导。其次,对不同犯罪类型的影响则体现为如下几点:第一,对于预备犯,应以不处罚为原则,处罚为例外,原因在于预备犯无法体现与征表行为人对国家法律制度的现实危害;第二,对未遂犯的处罚采取必罚制,虽然未遂犯一般未如既遂犯那样对国家法律制度造成实害,但未遂犯已体现了行为人对国家法律制度的否定性态度,且未遂犯是基于外界客观原因才未能在现实中得以完全展开、实现主观罪过的内容,因此必罚,但鉴于未遂犯对刑法所保护价值的损害轻于既遂犯,一般主张得减制,即可以从轻或减轻处罚;第三,对于迷信犯,应当不予以处罚,因为迷信犯没有认识能力,故不能转化为主观罪过,因此根本不存在犯罪行为,不具有社会危害性;第四,对于共同犯罪人而言,无论是共犯,抑或是正犯,都是在各自的主观罪过的支配下,以其他犯罪人的行为作为自己所能利用的客观条件而作用于刑法所保护的人或物的存在状态,因此,应按照各自的主观罪过支配下的行为进行处罚。再次,对刑罚轻重的影响主要取决于刑法所保护价值的重要性及行为人态度的对立程度。从刑法所保护的价值来考察,犯罪的客体不同,犯罪的性质也就不同,相应的,犯罪的社会危害程度也就不同,从而决定了该罪刑罚的轻重也有所不同;在同种犯罪中,衡量不同个罪的客观危害最重要的标识就是对刑法所保护价值造成的实际损害程度及危险程度。而从行为人对刑法所保护价值的对立态度及其程度来考察,态度对立之有无决定罪与非罪,而态度对立之程度则体现为诸多方面,如犯罪的故意、犯罪的过失、犯罪动机、犯罪目的、中止犯、自首犯、立功犯、胁从犯、累犯、激情犯及再犯可能性等等。最后,在对刑罚功能的影响上,由于犯罪体现了行为人对国家法律制度的否定意志,所以刑罚的适用以行为人的意志为依据,而意志形成的基础是犯罪人人格,故应注重改造行为人的犯罪人人格,消除其实施犯罪的根源,以达到特殊预防之效果。对于犯罪人以外的其他人(包括潜在的犯罪分子、普通公民及被害人),则应注重利用刑罚的威慑功能与安抚功能,以达到一般预防之效果,从而可有效地防止犯罪,实现惩罚犯罪、保护人民之刑罚目的。结语部分。在重新界定犯罪本质特征及犯罪本质后,笔者就以此为依据对我国现行刑法第13条规定的犯罪概念进行了重新解读。犯罪是依法应受刑罚处罚的危害社会的行为,其中危害社会应该理解为侵害或威胁国家法律制度或全体公民基本人权。而但书恰好可以说明行为由量变到质变的过程,行为“情节显著轻微危害不大”表明尚未达到应受刑罚处罚程度,也就意味着该行为没有侵害或威胁到国家法律制度或全体公民的基本人权,自然就不构成犯罪,因而但书有其存在的重要价值及意义。更多还原

【Abstract】 As the foundation of the science of criminal law, the concept of crimes has basic values for study, but the shortage of clear understanding of the concept of crimes makes it difficult to prescribe. Thereafter, it is originally meaningful to comprehend the nature of crimes, which is the basis of the reasonable conclusion of the concept of crimes and the instruction of criminal legislation and judicial practice. And this dissertation is divided into six chapters as follows.Preface. This chapter gives a brief introduction of the status quo of the concept of crimes including the approaches and defects and studied by domestic criminal circle, and provides the thesis paper with study methods on the basis of the mentioned.Chapter one reviews the retrospect of the concept of crimes, mainly of the study of the development of the ancient concept of crimes at home and abroad. In China, the concept of crimes was traced back to the West Zhou Dynasty and shaped in the Spring and Autumn Warring States times, when Morcious came up with a reasonable idea that the crime was a taboo, believing that crimes were acts that broke the law. While in foreign countries, written laws in ancient Babylonian period did not identity the concrete crimes and tell apart the characteristics and nature of the common civil offence from the characteristics and nature of crimes, thus could not end with a general concept of crimes. And the later Hebrew law that was greatly influenced by the Babylonian law, believed that acts breaking God’s will was the idea of sin in embryonic form. It was not until Roman period was the scientific concept of crimes put forward, believing that sins were neither breaking rules under God nor only harmful to individuals, but also harmful to the national or social benefits. The concept of crimes in Roman period began to distinguish crimes with civil offences in procedure, which showed that people had had deep understanding about crimes and generated the theoretical foundation of the concept of crimes of modem penology on the basis of the content of the nature of crimes. While ancient India, deeply influenced by religion, had the basic idea of the concept of crimes until the Manu Smriti of Maurya Dynasty. Chapter two gives a general conclusion and analysis of different theses of the concept of crimes of modern theories of criminal law and penal legislation. One more important classification believes there are three types of the concept of crimes, which are the concept in form, concept in nature and concept in mixed type. The concept in form explains the criterion for the identification of crimes, because crime was originated by the law-makers, who thought the so-called crime was the crime, it was unable to limit the power of the law-makers, which would bring about the tyranny of the law-makers. And concept in nature is also an exploration and study of the nature of crimes, that is, concept in nature is to interpret the reason why laws identify a certain act as a crime or on which basis the law-makers identify a crime. On the analysis of the existing studies of the nature of crimes, the theses can be classified into three types: they are the theory of objective harm, theory of subjective evil and theory of criminal personality. These three types of theories are some reasonable as well as incomplete. The theory of objective harm neither identifies the crime and civil offence nor interprets the causes of punishment in attempt and in preparation; theory of subjective evil does not define the legal connotation and emphasizes on obeying the law that will give rise to evil law as legal and the despotic of the law-makers; while personality in the theory of criminal personality is beyond measurement that it is easy for law-makers to trample public basic human rights by speaking in the name of defending the society. Moreover, the three types of theories are separated without forming a unity to interpret the nature of crimes. The concept of crimes in mixed type tries to use a neutral way, but it is apt to the extreme of concept in form of concept in nature when it cannot decide what criterion to base on.Chapter three is to illustrate the essential feature of the crimes. The essential feature of the crimes is a symbol to differentiate the general violations against law from the crimes easily and also shared by all crime. Based upon these, chapter three explores the three existing basic characteristics of the crimes. For can not be distinguished the general violations against law from the criminal actions, the social harms is not the essential feature of the crime. For can not be discriminated the no crime from the crime independently, the standard of the criminal illegalities is not the essential feature of the crime, too. And only the deserve punishments can be the essential feature of the crime. The deserved punishment embodies the visual criterion of social harmfulness and criminal illegality, it not only includes social harmfulness and indicates that social harmfulness achieved a certain degree, but it also is the premise and foundation of the criminal illegality. It is true that only deserved punishment can easily make a distinction of crimes from other general violations and display the unique characteristics of crimes, therefore deserved punishment is the essential feature of crimes.Chapter four is the redefinition of the nature of crimes as well as the deep influences on the criminal theories. Because the laws of cognition are the process from external to internal and from phenomena to essence, we should reveal the essence of crime from essential feature of the crimes, which is deserved punishment Deserved punishment illustrate justifications for state’s punishment power and criminal law as an independent department law, so we can define the essence of crime according to the purpose of criminal punishment and the regulation target.Criminal penalty as the toughest sanction measure, is to deprive civil basic human rights in the purpose of protecting the public civil basic rights, while national law system is the safeguard of the public basic human rights. Thus, criminal penalty is not only legal consequence, but also represents social relation, which is the regulation target of criminal law. Furthermore, we can illustrate the social relation from the regulation target of criminal law. As we all know, criminal penalty is the symbol to differentia criminal law and other law, but the standard to ascertain criminal law as an independent department law is not criminal penalty but its own regulation target, that is, the relationship between public basic human rights and criminal basic rights. Owing to the national law system is the system to safeguard the public basic human rights; the nature of crimes is the invasion of the national law system or a real danger (objective harm) to the public basic human rights, which is studied in the angle of social attribute. Act is the basement of the nature of crimes, and "Crime is an act" is the basic proposition of the theory of modern criminal law. From modem times on, criminal law circle at home and abroad has put forward mainly four act theories: they are theory of spontaneous behavior, theory of social behavior, theory of purpose behavior and doctrine on conduct of personality. Among the four theories, theory of spontaneous behavior, theory of social behavior and theory of purpose behavior cannot solve the problem of how the circumstances before/after the crime influence the sentence of conviction and criminal punishment, and doctrine on conduct of personality can interpret the circumstances before/after the crime, but it cannot limit acts within a range. It is believed that acts are a course that actors make use of objective conditions to influence the objects under actors’ will. While criminal acts are an organic unity of the elements of crime and has objective harm, which is created on the basis of the actors’ will against law (subjective offence) and determined to the characteristic and range of acts and also the core role in criminal acts. Therefore, criminal acts ought to be defined by subjective offence, only acts with subjective offence can be called crimes. Since subjective offence is the actors’ capacity for criminal responsibility, that is, the embodiment and application of cognitive and controlling abilities, which come from social practice and are influenced by some elements. One’s imperfect socialization can result in the criminal personality and the attitude that actors resent, contemn or disregard of what criminal law preserves, thus criminal personality is the cause of the nature of crimes. To sum up, the objective harm of criminal acts (an invasion of human rights) studies the nature of crimes in the aspect of social attribute; the understanding and will against what the criminal law preserves (subjective evil or will against the criminal law) inclusive and dominating criminal acts, studies the nature of crimes in terms of behavior structure; and the attitude that actors resent, contemn and disregard of what the criminal law preserves, studies the nature of crimes in terms of actors’ personality or cause of crime. The three aspects of the nature of crimes are interassociated and complement, objective harm and criminal personality are related by subjective evil, or criminal personality is the premise, objective harm is the foundation, while subjective offence is the core. The thesis further discusses how the redefined nature of crimes influences the basic principle of criminal law, types of crimes, gradation of penalties and the function of penalties.First, the nature of crimes is the invasion of the national law system (public human rights), and criminal law is forced to deprive certain people (criminals) basic human rights for the sake of public basic human rights. Therefore, the principle of necessity is not only the foundation but also the sovereign principle of the criminal law, which leads the principle of suiting punishment to crime and the principle of legality.Secondly, the refined nature of crimes makes an impact on the different types of crimes which are represented as follows. First, as for the preparatory crimes, the judgements regard impunity as its principle and punishments as its exception. The reason of the judgements is that the preparatory crimes can not explain the real danger of the actors against the state legal systems. Second, the punishments of the attempted offences cannot but employ the "should be punished". Though unlike the accomplished crimes which have caused the actual harmful or threat against the state legal systems, the attempted offences have illustrated the negative attitude of the actors against the state legal systems and, the attempted offences have not completely developed and accomplished the subjective offences because of the external objective causes. In this case, the judgements shall employ the "should be punished". However, in terms of the damage caused by the attempted offences is lighter than the accomplished crimes’, the judgements usually employ the mitigation of punishment which means the punishments shall be lightened. Once again, as for the incapable crimes, the judgements regard the impunity as its rule. This is because the actions of the incapable crimes do not have social harmfulness. One reason is that the incapable crimes represent the criminal personalities of the actors, nevertheless, these kind of personality attitudes do not transform to the subjective offences objectively and efficiently; another reason is that the actions of the capable crimes are not either the expansion of objectivity of the subjective offences or the perpetrating acts because the incapable offences are lack of cognitive abilities. Finally, as for the joint offenders, either the accomplices or the principal offenders, dominating by the subjective offences respectively, regard the actions of other criminals as their objective conditions and impact the state of the people or articles protected by the criminal law. Therefore, the judgements of the joint offenders shall be in the light of the respective actions dominated by the subjective offences.Again, the influence of the gradation of penalties is mainly based upon the value importance by the criminal law and the degree of the actors’ attitudinal oppositions. First of all, viewed from the values fenced by the criminal law, and because the social harms vary according to the nature of the crime which varies based upon the criminal subjects, the gradation of penalties varies, too. And for the same crime, the most important standard to appraise the objective harms of individual crime is to weigh the actual damages against the values sheltered by the criminal law. Second, viewed from the oppositional attitudes and degrees of the actors against the values guarded by the criminal law, whether the attitudinal oppositions present in many aspects, including the malefactors who had meritorious services, the criminal intentions and negligence, the discontinued crimes, the surrending criminals, the criminal motives, the criminal purposes, the coerced accomplices, the emotion offenders and the recidivists. Third, the possibilities of recommitments are also a primary standard to weigh the degree of the attitudinal oppositions.Finally, the impaction of penal function. Because crimes present the actors against the denial of will of the state legal systems and the foundation of will is criminal personality, the judgements shall reform the actors’ criminal personalities in order to avoid further offences and perform an effective role of specific prevention. And for the people besides the criminals, including the potential offenders, the common people and the victims, the judgements could employ their deterrent and conciliation function to carry out the common prevention. In this case, the judgements can prevent further crimes effectively, fulfil the punishment of the crime, and protect the people.Conclusion. The thesis interprets the thirteenth article of Chinese criminal law on a new score based on the redefinition of the essence of crime. Crime is the act that infringes the society and deserves punishment in accordance with Chinese criminal law, and the meaning of infringing the society should be understood as infringing the national law systems (or all citizens’ basic human rights). The articles of circumstance obviously slight and harm mild is reasonable when it means that the act is not a crime act owing to its not deserved punishment and not infringing the national law systems (or all citizens’ basic human rights).更多还原