不能犯中国立场之检讨

发布时间：2018-06-03 23:42

本文选题：不能犯 + 犯罪未遂　；参考：《江西财经大学》2014年硕士论文

【摘要】：不能犯问题自德国学者费尔巴哈提出这个概念以来,争论从来没有停止过。我国自民国时期引入不能犯的概念以来,对于不能犯的理论研究也没有停止过。而在刑事立法的高度完善的今天,理论界也繁荣着关于不能犯问题的相关研究。笔者对于不能犯问题的关注来自于法律实践中所遇到的现实问题的处理,不能犯问题的理论虽然极度繁荣,却也是争论不休,传统刑法观念对于不能犯的定位受到很多的批判,而这些批判最主要是对传统刑法学中不能犯理论的反思,这也与我国刑事立法所采取的立场相关,并且这种不能犯立法的立场与我们刑事法律发展存在一定的矛盾。这也导致了我们国家不能犯立法与司法工作者在司法实践中采取的做法相矛盾,这也是笔者在法律实践中遇到的问题。因此笔者希望通过本文：第一,厘清不能犯问题中所争议的问题。主要包括不能犯定义、定性以及处罚问题；第二,分析我国现阶段不能犯问题的刑事法律采取的立场。主要从近年来的刑事立法与司法解释的一些相关规定出发,分析其与司法实践的矛盾所在；第三,在借鉴外国关于不能犯问题的国家立场与相关理论研究,提出我国完善刑事立法中不能犯问题的立法的可能,以此来指导我们司法实践,达到立法与实践的统一本文主要采取的是比较法与案例分析来研究不能犯问题。一方面文章较大幅度的对比了国外相关国家不能犯问题的立法与相关学者的研究,对比我国对于不能犯问题进行反思。另外一方面对于不能犯问题的研究,也对比了不能犯相关的理论即犯罪未遂的相关理论,做出区分,阐述确立不能犯刑法体系地位的必要性。对于笔者文章论点的佐证,主要通过最高人民法院做出的一些典型案例分析为基础,以及采取了一定量的学者讨论较多的案例,以将笔者观点做出区分。通过对比国外立法与相应不能犯理论的研究,现今国内对于不能犯立法存在下列问题：第一,不能犯的相关立法立场与刑事立法发展趋势相悖。随着社会经济的发展,刑罚的轻缓化是现今社会发展的必然趋势,有如日本对于不能犯的处罚做出了明确的限制,对于符合不能犯条件的,不认为是犯罪不予处罚。我国目前虽然没有相关立法,但是从我国刑法修正八取消了13个死刑罪名可以预见,我国对刑罚的立法将趋于更加轻缓。这也为我国将一些没有危险的行为与犯罪区别开来,即将不能犯列为犯罪未遂予以处罚相区别,贯彻我国主客观相一致的原则。第二,不能犯相关立法与司法实践的不统一。虽然刑事立法中将并未提及不能犯,而且将不能犯是归于犯罪未遂的一种情形,予以处罚。但是,在司法实践中,法官却并没有完全依照刑法与传统刑法理论,而是在审判中将不能犯与犯罪未遂相区别,虽然不罚的情形比较少,却毫无疑问肯定了不能犯的问题的独立性,认可不能犯是不同于犯罪未遂的；第三,对于不能犯与犯罪未遂的区分即危险判断理论的选择存在普遍的争论。学术界大多数学者认同不能犯与犯罪未遂之间的差别,那么要将不能犯与犯罪未遂进行区分,毫无疑问,要给犯罪未遂与不能犯画出一条红线,这条红线即可以将不能犯与犯罪未遂区分开来.而这张红线就是是否具有侵害法益的危险,没有侵害法益的危险的即不能犯.而恰洽这根红线的画法,也是多数学者争论的焦点,而不能犯的相关文章最终都变成了危险判断理论的文章。但实际上,不管何种危险判断理论,都存在其自身不足之处,不同国家选择不同的危险判断理论,如德国的印象理论为通说,日本的具体危险说是其通说,但是不管何种理论都有其自身的不足。笔者不倾向与选择何种危险判断理论,而认为要判断法益侵害的危险应该区分实事与规范层面,考虑是否具有危险所有危险判断理论主要涉及三个方面的问题：判断时点、判断材料和判断标准.根据刑罚的目的,对于三个标准细化,而并非盲目的去选择那种危险判断理论。针对上述外国不能犯理论的研究与我国司法实践的分析,笔者进一步认为：完善我国关于犯罪未遂与不能犯问题的相关立法是紧迫的,也具有积极的意义。在国内立法中可以就不能犯问题,于刑法规定中犯罪未遂后面增加不能犯的规定,并通过相关的司法解释明确指导我国司法实践。
[Abstract]:Since the concept of the German scholar Feuerbach has put forward this concept, the dispute has never stopped. Since the introduction of the concept of inability to offend in the period of the Republic of China, the theoretical research on the inability to offend has not ceased. And in the highly perfected criminal legislation today, the theorists have also prospered the related research on the problem of inability to commit. The author's attention to the problem of non offense comes from the treatment of practical problems encountered in the practice of law. Although the theory that can not be committed is extremely prosperous, it is also an argument. The traditional concept of criminal law has been criticized a lot for the localization of the non offense, and these criticisms are mainly the reflection of the theory that the traditional criminal law can not be committed. It is also related to the position taken by the criminal legislation of our country, and there is a certain contradiction between the standpoint of the incapable of making legislation and the development of our criminal law. This also leads to the contradiction between our country's inability to commit legislation and the practice taken by the judiciary in judicial practice, which is also a problem that the writer has encountered in the practice of law. Through this article: first, we should clarify the problems in the problem of inability to offend, mainly including the inability to commit the definition, the qualitative and the punishment, and second, to analyze the position of the criminal law that can not be made at the present stage of our country. The contradiction lies in the practice; third, in reference to the study of the national standpoint and relevant theories of foreign countries on the problem of inability to offend, the possibility of perfecting the legislation that can not be made in the criminal legislation is put forward in order to guide our judicial practice and achieve the unity of legislation and practice.
On the one hand, the article compares the legislation with the relevant scholars in foreign countries and the related scholars, and compares our country to the problem of the non offense. On the other hand, the research on the problem of the non offense is also not related to the related offense. The theory is the related theory of attempted crime, making a distinction and explaining the necessity of establishing the status of the criminal system, which is based on the analysis of some typical cases made by the Supreme People's court, and a certain number of scholars have discussed more cases to make a distinction between the author's views.
By comparing the study of the foreign legislation and the theory of the corresponding inability to offend, the following problems exist in the current domestic legislation on the inability to offend: first, the relevant legislative standpoint of the inability to commit is contrary to the trend of the development of the criminal legislation. With the development of the society and the economy, the mitigation of the penalty is the inevitable trend of the present social development, such as the place in which Japan can not commit it. The penalty has made a clear limit, and it is not considered a crime not to be punished. Although there is no relevant legislation in our country at present, it is foreseeable to cancel 13 death penalty charges from the amendment eight of our country's criminal law, and the legislation of our country will tend to be more slow. Apart from that, we will not be able to make a distinction between criminal attempt and punishment, and carry out the principle of agreement between the subjective and the objective of our country. Second, we can not make a disunity of the relevant legislation and judicial practice. Although the criminal legislation will not mention the inability to offend, and will be punished as a case of attempted crime, it will be punished in the judicial practice. However, the judge does not completely follow the theory of criminal law and traditional criminal law, but can not make a distinction between criminal attempt and criminal attempt in trial. Although the situation of unpunished is relatively small, it certainly affirms the independence of the problem that can not be made, and the recognition of the Unaccomplished Offense is different from the attempted crime; third, the distinction between the unaccomplished and the attempted offense is the same There is a general debate on the choice of the theory of danger judgment. Most scholars in the academic circle agree that the difference between the criminal attempted and the attempted crime should be distinguished from the attempted crime. There is no doubt that there is no doubt that a red line should be drawn from the attempted crime and the unaccomplished crime. This red line can distinguish between the impossible and the attempted crime. If Zhang Hongxian has the danger of infringing the legal interest and does not infringe on the danger of the legal interests, it is also the focus of most scholars' argument, and the relevant articles that cannot be made will eventually become the article of the theory of dangerous judgment. But in fact, there is no danger of any danger judgment theory. At the same time, different countries choose different risk judgment theories, such as the German impression theory, the specific danger theory of Japan is its general theory, but no matter what theory has its own shortcomings. The author does not tend to choose what risk judgment theory, and thinks that the danger of judging the infringement of legal interest should distinguish between the actual and the standard. The theory of risk assessment is mainly involved in three aspects: judging the time point, judging the material and judging standard. According to the purpose of the penalty, the three standards are refined, but not blindly choosing the dangerous judgment theory.
In view of the analysis of the theory of foreign non offense and the judicial practice of our country, the author further believes that it is urgent and positive to improve the relevant legislation on the attempted and uncommitted crimes in our country. In the domestic legislation, it is possible to increase the non offense after the criminal attempt in the provisions of the criminal law. And, through relevant judicial interpretations, clearly guide our judicial practice.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1

【参考文献】