客观归责理论功能定位研究
发布时间：2018-12-18 16:55
【摘要】：现代客观归责理论是德国刑法理论中犯罪论体系精致化的产物，近年来在我国刑法学界引起了广泛热烈的讨论，其中也不乏负面批评和质疑，主要集中于客观归责功能的过度扩张问题。客观归责理论缘起于对“条件说因果关系无限回溯”难题的解决，但由于其所提供的归责原则向实行行为领域、主观罪过领域和违法性等领域的扩张适用，造成了人们对客观归责理论功能定位本体性认知上的混乱。然而客观归责理论功能定位并不像批评者所认为的那么模糊不清，很大程度上是因为他们没有在阶层理论中把握客观归责理论，由此造成了误解。当然也不可否认客观归责理论本身存在判断体系不合理、细部规则庞杂等缺陷。 妥当理解客观归责理论的功能定位，应当寻求更深层次的理论支持。故本文考察了客观归责理论的学说史以及形成当今理论格局的现代知识背景，以期能为客观归责理论功能定位提供有力理论支撑。客观归责理论功能定位的学术争议说明了“目的指向”的认知方式并不能为客观归责理论寻求合理功能定位，故本文转以“方法指向”为研究方向，在与相当理论的关系梳理中得出了客观归责理论合理的功能定位。 客观归责理论合理的功能定位是“实质构成要件理论”，是关于行为人——行为——结果之间在刑法意义上的客观联系，且在论证构成要件成立的同时肯定地、积极地推断了违法性的成立。因此客观归责是沟通构成要件符合性与违法性之间的桥梁，是在事实关系上论证客观不法的理论体系，并且为有责性的判断提供客观的根据。 解决了客观归责理论的功能定位问题并不意味着其本身存在的缺陷得以消除，反而需要对客观归责体系作进一步修复。客观归责理论作为客观不法的论证体系，不是也不应是规则的简单堆砌。为了更好实现客观归责理论的功能，针对洛克信的客观归责理论体系的缺陷，，需要重新整合归责路径，并重新构建这一理论体系。客观归责理论重视归责要素之间的互相关联性，这种关联性贯穿于各个判断阶段，因而客观归责的判断体系是一个动态的过程。通过将客观归责划分为四个层次，显示出客观归责体系所具有的逐步限缩的功能，揭示出客观归责的体系化实际上整合了意志归责和规范归责两个路径。客观归责不是简单的规则集合体，经由四阶段的判断，完成了经验评价到道义评价再到规范评价的判断过程。
[Abstract]:The modern objective imputation theory is the result of the refinement of the criminal theory system in German criminal law theory. In recent years, it has aroused extensive and heated discussion in the criminal law circle of our country, among which there is no lack of negative criticism and doubt. It mainly focuses on the excessive expansion of objective imputation function. The theory of objective imputation originates from the solution of the problem of "unlimited backtracking of causality", but the principle of imputation is applied to the fields of practice behavior, subjective fault and illegality, etc. It has caused confusion on the function of objective imputation theory. However, the functional orientation of objective imputation theory is not as vague as critics think, largely because they have not grasped objective imputation theory in stratum theory, which has resulted in misunderstanding. Of course, it can not be denied that objective imputation theory itself has some defects, such as unreasonable judgment system and numerous detailed rules. To properly understand the functional orientation of objective imputation theory, we should seek deeper theoretical support. Therefore, this paper examines the theoretical history of objective imputation theory and the modern knowledge background of forming the present theoretical pattern, in order to provide a powerful theoretical support for the functional orientation of objective imputation theory. The academic controversy about the functional orientation of objective imputation theory shows that the cognitive mode of "aim direction" can not seek reasonable functional orientation for objective liability theory, so this paper turns to "method direction" as the research direction. The reasonable functional orientation of objective imputation theory is obtained in the analysis of the relation with equivalent theory. The reasonable functional orientation of objective liability theory is "the theory of essential constitutive elements", which is about the objective relation between the doer and the behavior and the result in the criminal law sense, and proves that the constitutive elements are established at the same time. The establishment of illegality was positively inferred. Therefore, objective imputation is a bridge between conformance and illegality of constitutive elements, a theoretical system to prove objective wrongfulness in factual relation, and provides an objective basis for judgment of responsibility. Solving the problem of functional orientation of objective imputation theory does not mean that its own defects can be eliminated, on the contrary, the objective imputation system needs to be further repaired. Objective imputation theory, as an objective and illegal system of argumentation, is not and should not be a simple pile of rules. In order to better realize the function of objective imputation theory, aiming at the defects of Lockerson's objective imputation theory system, it is necessary to reintegrate the imputation path and re-construct this theoretical system. The theory of objective imputation attaches importance to the interrelation between the elements of imputation, which runs through every judgment stage, so the judgment system of objective imputation is a dynamic process. By dividing the objective imputation into four levels, it shows that the objective imputation system has the function of gradually limiting and shrinking, and reveals that the systematization of objective imputation actually integrates the two paths of volitional imputation and normative imputation. Objective imputation is not a simple set of rules. Through four stages of judgment, the judgment process of experience evaluation, moral evaluation and norm evaluation is completed.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
本文编号：2386158
[Abstract]:The modern objective imputation theory is the result of the refinement of the criminal theory system in German criminal law theory. In recent years, it has aroused extensive and heated discussion in the criminal law circle of our country, among which there is no lack of negative criticism and doubt. It mainly focuses on the excessive expansion of objective imputation function. The theory of objective imputation originates from the solution of the problem of "unlimited backtracking of causality", but the principle of imputation is applied to the fields of practice behavior, subjective fault and illegality, etc. It has caused confusion on the function of objective imputation theory. However, the functional orientation of objective imputation theory is not as vague as critics think, largely because they have not grasped objective imputation theory in stratum theory, which has resulted in misunderstanding. Of course, it can not be denied that objective imputation theory itself has some defects, such as unreasonable judgment system and numerous detailed rules. To properly understand the functional orientation of objective imputation theory, we should seek deeper theoretical support. Therefore, this paper examines the theoretical history of objective imputation theory and the modern knowledge background of forming the present theoretical pattern, in order to provide a powerful theoretical support for the functional orientation of objective imputation theory. The academic controversy about the functional orientation of objective imputation theory shows that the cognitive mode of "aim direction" can not seek reasonable functional orientation for objective liability theory, so this paper turns to "method direction" as the research direction. The reasonable functional orientation of objective imputation theory is obtained in the analysis of the relation with equivalent theory. The reasonable functional orientation of objective liability theory is "the theory of essential constitutive elements", which is about the objective relation between the doer and the behavior and the result in the criminal law sense, and proves that the constitutive elements are established at the same time. The establishment of illegality was positively inferred. Therefore, objective imputation is a bridge between conformance and illegality of constitutive elements, a theoretical system to prove objective wrongfulness in factual relation, and provides an objective basis for judgment of responsibility. Solving the problem of functional orientation of objective imputation theory does not mean that its own defects can be eliminated, on the contrary, the objective imputation system needs to be further repaired. Objective imputation theory, as an objective and illegal system of argumentation, is not and should not be a simple pile of rules. In order to better realize the function of objective imputation theory, aiming at the defects of Lockerson's objective imputation theory system, it is necessary to reintegrate the imputation path and re-construct this theoretical system. The theory of objective imputation attaches importance to the interrelation between the elements of imputation, which runs through every judgment stage, so the judgment system of objective imputation is a dynamic process. By dividing the objective imputation into four levels, it shows that the objective imputation system has the function of gradually limiting and shrinking, and reveals that the systematization of objective imputation actually integrates the two paths of volitional imputation and normative imputation. Objective imputation is not a simple set of rules. Through four stages of judgment, the judgment process of experience evaluation, moral evaluation and norm evaluation is completed.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
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