【作者】 李立丰；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 作为美国刑法基本概念范畴之一的犯意(Mens Rea)所承载的理论与现实意义不言而喻,更为重要的是,通过对此问题的探索可以为中国刑法学界今后在美国刑法学方向上的深入研究提供方法上的经验和教训,在此基础上,通过对于我国刑法学实然研究方法的反思,论者在本文当中提出并初步论证了建构中国刑法学“实用主义”研究方法这一命题。概括来说,通过针对美国刑法中犯意源流、演进以及研究可能性和可行性的考察,将本文的研究模式建构在较为符合中国学者认知习惯的基础之上。除了考问美国刑法犯意研究逻辑上的正当性之外,论者还通过探究犯意之于美国刑法理论若干根本问题的关系,论证了此项研究的意义。由此深入,在针对犯意含义的研究过程当中一方面承认并剖析了以语言为载体的犯意所先天具有的模糊性,另一方面通过将其与道德、动机等相关概念剥离,从而在不同深度上对于美国刑法犯意加以厘定。在完成对于犯意的普通法解读基础上,结合美国刑法现实情状,根据论者自身对美国刑法解读范式的理解,以作为美国刑事成文法摹版出现的模范刑法典中犯意规定为范本,对其加以解读、区分和评价。在完成对于美国刑法中犯意核心含义考察的同时,论者又从普通法和制定法两个领域当中犯意要求缺失的典型情况出发,对犯意边缘化这一重要趋势加以研讨。另外,论者还着力考察了美国刑法中犯罪纵向和横向两个发展维度中犯意的表现样态,从而进一步丰富和完善对于犯意问题研究的广度,同时,结合美国刑事实体法与程序法密接的实际,从直接和间接两个层面论了美国刑法中犯意之证成这一重大实际问题。在完成美国刑法学研究方法的总结基础上,论者在文章的最后针对我国刑法学研究方法的缺失现状,分析论证了中国刑法学研究方法的“实用主义”建构这一理论问题。更多还原

【Abstract】 Being a fundamental concept, Mens rea has its own value in the researching on the American criminal law theory. So by doing this can we fill the blank in the concerning domestic studying and most importantly, by digging out the sprint buried in the method of American style researching, can we find some valuable experience and lessons for the orientation finding for Chinese criminal law research in the future.This dissertation includes the following eight chapters.Chapter I mainly concern the setting up of the vantage point for the researching on the mens rea in American criminal law. By dating back the origin and the trace of development of men rea, we can make it sure the time period for our following researching. On the other hand, by arguing for whether existing the binary constitution of crime and whether can it be knowledgeable, can we find the possibility of the researching on the mens rea. Also in this chapter, by discussing the characteristics of relatively stationarity, the absolutely diversity and indirect expression, we try to find the feasibility of the concerning research? In the end of this part, the value of researching on mens rea has been put forwarded.Chapter II focus on the relationship between mens rea and other important concepts in the American criminal law theory. Beginning from ascertaining the development history of the American criminal law theory, we can get some general impression of its status ego. In the following part, the author discusses the relationship between mens rea and aim of criminal law in U.S and the relationship between the mens rea and the punitive theory in American criminal law theory. Besides, in this part, the dynamic interaction between mens rea and the voluntariness has been discussed in details.Chapter III mainly talks about the meaning of mens rea from the perspective of common law. In this chapter, the author starts his augments from the character of Ambiguity of mens rea. By differentiating Ambiguity and vagueness, the author draws the conclusion mentioned above. Arguing from this basis, the author distinguishes the concept of mens rea and the concept of moral culpability. Further more, the author tries to have mens rea stripped from interrelated concepts by discussing various arguments in this problem.Chapter IV can be seen as the core of this dissertation. In this chapter, by making the Modern Penal Code being the facsimile, the author explores some fundamental questions in the interpretation of mens rea in codified criminal law. Firstly, by discriminating interpretation and reasoning, the author makes a detailed inquiry about the prerequisites for the interpretation of mens rea. Arguing form this basis, the author then explores the legislative procedure so as to make sure its impact on the object of interpretation. And by researching on the validity of being the subject in the interpretation of court and jury, the author makes it ascertain the court, rather than the jury, has the qualification to be the subject. After talking about the subject and the object of interpretation, the author discusses the method of interpretation in the American criminal law, i.e., the way of compromise in the interpretation. After this kind of general introduction, the author then focus on the interpretation of the mens rea regulated in the MPC. In this part, the author emphasizes the peculiar method adopted by the MPC, this is to say, the method of elemental analysis. By discussing the advantages and disadvantages of elemental analysis, the author explains the components of this way of interpretation and its classification. And then the author uses the elemental analysis as weapon to explore the mens rea stipulated in the MPC, i.e., knowledge, purpose, recklessness and negligence and the dynamic relationship among the four kinds of mens rea. And the author does not satisfy by doing the research talked above, in the end of this chapter, he try to analysis and evaluate the stipulation about the mens rea in the MPC. By exploring the theoretical constitutes of the mens rea in the MPC and the concerning evaluating standards, the author make it clear the advantage and shortcoming of the related regulation in MPC.Chapter V can be hold as the nature extension of the preceding discussion. Finishing the researching on the core part of mens rea, this part generally concerns the border of the concept. From the historical and the logical perspective, the author introduces the trace of marginalizing of mens rea, the difference between nature crime and codified crime and the binary in the retribution theory in punishment. Then the author tries hard to classify the margin of mens rea from different considerations, especially those parts between torts and between civil liabilities. Take the felony murder and statutory rape as examples, the author analyzes the margin of mens rea in traditional crime, on the other hand, take the CWA and NFA as target, the author researches the margin of mens rea in codified crimes.Chapter VI introduces mens rea in different period of crime and in the different shape of crime. Since we can’t make the whole picture in one chapter, the author adopts attempt crime and accomplice as the example respectively. In the former, the author pays attention to the value of attempt and its components so as to make it clear what is attempt. By doing this, the author inquires whether the mens rea in attempt should be the same as those asked for finished crime. From the perspective of elemental analysis, by adopting valid standard, the author then explores the mens rea in the attempt. Besides conducting the researching preceding, the author also uses the same method to analyze mens rea in accomplice.Chapter VII mainly talks about the proving of mens rea in the American criminal law, owning to the close relation between the substantial and procedure law in the U.S. In the beginning, the author set up the logical prerequisites for the proving of mens rea i.e., whether is there basis for us to support the augment of the binary theory about the mind and the body. In this part, the author also compares the presumption and the inference. By doing this, the author concludes that inference has constitutional validity. And then the author takes the transferred intent and the willful blandness as example to explore the indirect proving of mens rea in the American criminal law theory.Chapter VIII is the final part of this dissertation. In this part, the author puts forward a standard by which we can analyze the American criminal law more efficiently. Borrowing valuable experience and lessons from the researching on the mens rea in American criminal law, the author sings high praise for the pragmatism in Chinese criminal law research. From the experience drawing from the researching on the mens rea in American criminal law, the author concludes that the methods adopted by American scholars to analyze have the mark of pragmatism, such as focusing on concrete problem and arguing for contextlism and comprising method. In this chapter, the author points out that pragmatism only a researching method, rather than ideology. So in view of the deadlock in the criminal law researching in China, the author holds that we should adopt some valuable sprit in the pragmatism to innovate our method of research, such as prefer the solving of concrete problem, adopt a step by step method to change our criminal law, respect our own history and culture, etc.更多还原