机能主义刑法理论研究
发布时间：2019-05-21 09:15
【摘要】：机能主义刑法理论是战后日本刑法学中的一个重要理论流派。机能主义刑法理论最早由著名刑法学家平野龙一提出。针对战后初期日本刑法学存在的重视伦理保护、关注体系构建、强调罪刑法定主义的形式侧面的状况,平野龙一进行了批判,并主张刑法学应当根据战后制定的新宪法的动向,重视个人利益和法益保护,从体系性思考转向问题性思考,更加强调罪刑法定主义的实质侧面,对刑法进行实质解释。从上述主张出发,平野龙一进一步展开机能主义刑法理论,提出了结果无价值论、刑法修改的犯罪化与非犯罪化、刑法机能的可替代性、刑法的谦抑性、国民参与司法等主张。机能主义刑法理论提出后对日本刑事立法和司法都产生了重要的现实影响。在立法方面,平野龙一以机能主义刑法理论的法益主义和责任主义为论据,极力批判日本政府于1974年出台的保守色彩浓厚的《刑法修改草案》,最后阻止了该草案进入立法程序；在司法方面,平野龙一以国民参与司法论为论据,批判日本刑事司法机关的官僚性,主张实行参审制,开放国民参与司法的途径,平野龙一的大部分观点被2004年通过的《裁判员法》所采纳,对裁判员制度的诞生起到了重要的推动作用。 平野龙一的机能主义刑法理论深受美国的功能主义社会学、现实主义法学以及日本的经验法学的影响。机能主义刑法理论提倡的“刑法的机能考察”即来源于默顿的功能分析方法,法官决策行动论则是以帕森斯的社会行动论为理论模型；机能主义刑法理论关于司法改革和判例机能的主张受到了卢埃林和弗兰克的现实主义法学思想的深刻影响;机能主义刑法理论批判传统刑法的非现代性、重视国民的法律意识、主张刑法学说以预测和影响司法判决为任务等观点,则是经验法学延伸至刑法学领域的结果。 平野龙一提出的机能主义刑法理论对日本刑法学产生了深远影响,得到了众多学者的继承和发扬。其中影响较大的是所一彦的刑事法社会学、前田雅英的实质犯罪论、松泽伸的新机能主义刑法理论。这些成果代表了机能主义刑法理论在20世纪80、90年代乃至21世纪的发展动向,表明机能主义刑法理论在提出60多年后仍具有新时代条件下的鲜活生命力。 机能主义刑法理论在日本也受到反驳和批判。机能主义刑法理论既有长处也有短处,对此应作客观评价,其长处值得我国刑事法学借鉴。在刑法解释理论方面,机能主义刑法理论中的实质犯罪论对研究我国的形式解释论与实质解释论有一定的启发意义；在刑法的法律渊源方面,随着我国案例指导制度的建立,指导性案例也成为刑法的渊源,机能主义刑法理论主张的判例具有立法机能的理论以及受到这一理论影响的日本判例制度,对我国完善案例指导制度有所助益；在刑事司法改革方面,扩大人民群众参与司法的途径已经成为司法改革的方向,机能主义刑法理论主张的国民参与司法论以及深受这一理论影响的日本裁判员制度,可以为我国改革和完善人民陪审员制度提供极具借鉴意义的参考。 我国刑法学中的形式解释论与实质解释论之争很大程度上受到了日本刑法学中的形式犯罪论与实质犯罪论之争的影响。形式解释论与实质解释论之争包含了诸多误解,两者的分歧是被夸大的,从刑法解释的实践来看,没有必要坚持单一的解释立场,应该提倡一种不预设立场、以问题性思考为指向的、有限实用主义的刑法解释观。 我国已初步建立案例指导制度,但还缺乏运用于实践的可操作性,可考虑借鉴日本的判例制度,明确指导性案例有约束力的部分、在裁判文书中的援引方式、参照适用的约束力、变更的程序、与法学理论的关系等问题。 我国的人民陪审员制度与日本的裁判员制度具有较强的可比性。但日本的裁判员制度实施得比较成功,而我国的人民陪审员制度对人民陪审员行使职权的保障不够充分,因此实施成效并不明显。可以考虑借鉴日本裁判员制度的经验,在现行人民陪审员制度框架下,围绕强化人民陪审员的独立地位,进行具有改革性质的探索。
[Abstract]:The theory of machine-energy criminal law is an important theoretical school in the post-war Japanese criminal law. The theory of the theory of machine-energy criminal law was first put forward by the famous expert of the criminal law. In the light of the importance attached to the protection of the ethics, the construction of the system of attention in the early stage of the post-war criminal law of Japan, the situation of the form of the decriminalization of the crime and the law of the crime and the law of punishment, and the criticism of the dragon one, it is suggested that the criminal law should pay more attention to the personal interests and the protection of the law and the law in accordance with the new constitution of the post-war criminal law. From the systematic thought to the problem of thinking, more emphasis is given to the substantial side of the decriminalization of the crime and the substantive interpretation of the criminal law. On the basis of the above-mentioned proposition, the theory of the criminal law of the machine-energy is further spread out, and the result has no value of value, the crime and the non-crime of the revision of the criminal law, the alternative to the function of the criminal law, the curability of the criminal law, the citizen's participation in the administration of justice and the like. The theory of the theory of machine-energy criminal law has an important realistic influence on the criminal legislation and the administration of justice in Japan. On the basis of the legislation, in the case of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the doctrine of the doctrine of liability, the draft of the draft amendment to the draft Criminal Law, which was introduced in 1974 by the Japanese Government, was strongly criticized, and the draft was finally prevented from entering On the basis of the theory of the participation of the national in the administration of justice, Hirano criticized the bureaucratic nature of the criminal judicial organs of Japan, and advocated the approach of the system of participation in the administration of justice and the opening of the people's participation in the administration of justice. The majority of the views in the field were adopted in 2004. It has played an important role in the birth of the referee system. The theory of the machinable criminal law of Pinfield is deeply influenced by the American functionalist sociology, the realistic law and the experience of Japan's experience law. In response, the "The Function of Criminal Law" advocated by the theory of the theory of machine-energy criminal law is from the function analysis method of Merton, and the decision-making action of the judge is based on the social action of Parsons. The theory of the theory of the theory of the theory of the theory of the theory of the judicial reform and the case function of the theory of the theory of the theory of the theory of the theory of the judicial reform and the case function is deeply influenced by the realistic legal thought of Lu Elin and Frank; the theory of the theory of the machine-energy criminal law criticizes the non-modernity of the traditional criminal law and attaches importance to the law of the In view of the view that the criminal law theory is used to predict and influence the judicial decision as the task, it is the conclusion that the experience law extends to the field of criminal law The theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory on the criminal law of Japan has far-reaching influence on the criminal law of Japan, and has obtained the inheritance of many scholars. And carry forward, in which the influence of the larger is the criminal law sociology of the hiko, the theory of the real crime of the former Tian Ya-ying, the new machinable punishment of the pine and the extension. The results of these achievements represent the development trend of the theory of the theory of the theory of the machine-energy theory in the 1980s, the 1990 's and the 21st century, and it is shown that the theory of the theory of the theory of the machine-energy criminal law still has a new era of living under the new age. The life force. The theory of the theory of the machine-energy theory in Japan is also affected. Rebuttal and critical. The theory of the theory of machine-energy criminal law has the advantages and disadvantages, which should be evaluated objectively, and its advantages are worth the punishment of our country. On the basis of the law of the law, in the theory of the interpretation of criminal law, the theory of substantive crime in the theory of the theory of machine-energy criminal law is of a certain enlightenment to the study of the form of the interpretation of the form of our country and the substance of the interpretation of the substance; in the aspect of the legal origin of the criminal law, with the establishment of the case guidance system of our country, the guiding case also becomes the guiding case. The origin of the criminal law, the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the legislative function and the Japanese case system, which are influenced by this theory, are helpful to the perfection of the case guidance system in our country; in the Criminal Division In the aspect of law reform, the way to enlarge the people's participation in the administration of justice has become the direction of the judicial reform, the national participation in the judicial theory of the theory of the theory of the theory of the theory of the machine-energy, and the Japan, which is influenced by the theory. The referee system can provide a very useful reference for the reform and perfection of the people's juror system in our country On the reference of the meaning, the dispute between the form of the interpretation of the form and the substantive interpretation of the criminal law of our country is greatly influenced by the form of crime and the substance in the criminal law of Japan. The influence of the dispute between the form of the crime and the substantive interpretation of the theory of crime includes a lot of misunderstanding, the differences between the two are exaggerated, and from the practice of the interpretation of the criminal law, there is no need to insist on a single interpretation position, and a non-pre-set position should be promoted to solve the problem A point-to-point, limited, practical master. The concept of the interpretation of the meaning of the criminal law. The case guidance system has been set up in our country, but it lacks the operability of its application in practice. It can be used to draw on the case system of Japan, to make clear the binding part of the guiding case, and to refer to the applicable law in the method of reference in the decision instrument. binding, changing procedures, and methods The relationship between the theory of people's jurors and the referees in Japan. However, the system of people's jurors in Japan is more successful, and the system of people's jurors in China is not sufficient for the people's jurors to exercise their functions and powers. therefore, the implementation effect is not obvious, the experience of the Japanese referee system can be taken into consideration, and in the framework of the current people's juror system, the independent position of the people's jurors is strengthened under the current people's juror system framework,
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D924.1
，
本文编号：2481991
[Abstract]:The theory of machine-energy criminal law is an important theoretical school in the post-war Japanese criminal law. The theory of the theory of machine-energy criminal law was first put forward by the famous expert of the criminal law. In the light of the importance attached to the protection of the ethics, the construction of the system of attention in the early stage of the post-war criminal law of Japan, the situation of the form of the decriminalization of the crime and the law of the crime and the law of punishment, and the criticism of the dragon one, it is suggested that the criminal law should pay more attention to the personal interests and the protection of the law and the law in accordance with the new constitution of the post-war criminal law. From the systematic thought to the problem of thinking, more emphasis is given to the substantial side of the decriminalization of the crime and the substantive interpretation of the criminal law. On the basis of the above-mentioned proposition, the theory of the criminal law of the machine-energy is further spread out, and the result has no value of value, the crime and the non-crime of the revision of the criminal law, the alternative to the function of the criminal law, the curability of the criminal law, the citizen's participation in the administration of justice and the like. The theory of the theory of machine-energy criminal law has an important realistic influence on the criminal legislation and the administration of justice in Japan. On the basis of the legislation, in the case of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the doctrine of the doctrine of liability, the draft of the draft amendment to the draft Criminal Law, which was introduced in 1974 by the Japanese Government, was strongly criticized, and the draft was finally prevented from entering On the basis of the theory of the participation of the national in the administration of justice, Hirano criticized the bureaucratic nature of the criminal judicial organs of Japan, and advocated the approach of the system of participation in the administration of justice and the opening of the people's participation in the administration of justice. The majority of the views in the field were adopted in 2004. It has played an important role in the birth of the referee system. The theory of the machinable criminal law of Pinfield is deeply influenced by the American functionalist sociology, the realistic law and the experience of Japan's experience law. In response, the "The Function of Criminal Law" advocated by the theory of the theory of machine-energy criminal law is from the function analysis method of Merton, and the decision-making action of the judge is based on the social action of Parsons. The theory of the theory of the theory of the theory of the theory of the theory of the judicial reform and the case function of the theory of the theory of the theory of the theory of the theory of the judicial reform and the case function is deeply influenced by the realistic legal thought of Lu Elin and Frank; the theory of the theory of the machine-energy criminal law criticizes the non-modernity of the traditional criminal law and attaches importance to the law of the In view of the view that the criminal law theory is used to predict and influence the judicial decision as the task, it is the conclusion that the experience law extends to the field of criminal law The theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory on the criminal law of Japan has far-reaching influence on the criminal law of Japan, and has obtained the inheritance of many scholars. And carry forward, in which the influence of the larger is the criminal law sociology of the hiko, the theory of the real crime of the former Tian Ya-ying, the new machinable punishment of the pine and the extension. The results of these achievements represent the development trend of the theory of the theory of the theory of the machine-energy theory in the 1980s, the 1990 's and the 21st century, and it is shown that the theory of the theory of the theory of the machine-energy criminal law still has a new era of living under the new age. The life force. The theory of the theory of the machine-energy theory in Japan is also affected. Rebuttal and critical. The theory of the theory of machine-energy criminal law has the advantages and disadvantages, which should be evaluated objectively, and its advantages are worth the punishment of our country. On the basis of the law of the law, in the theory of the interpretation of criminal law, the theory of substantive crime in the theory of the theory of machine-energy criminal law is of a certain enlightenment to the study of the form of the interpretation of the form of our country and the substance of the interpretation of the substance; in the aspect of the legal origin of the criminal law, with the establishment of the case guidance system of our country, the guiding case also becomes the guiding case. The origin of the criminal law, the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the legislative function and the Japanese case system, which are influenced by this theory, are helpful to the perfection of the case guidance system in our country; in the Criminal Division In the aspect of law reform, the way to enlarge the people's participation in the administration of justice has become the direction of the judicial reform, the national participation in the judicial theory of the theory of the theory of the theory of the theory of the machine-energy, and the Japan, which is influenced by the theory. The referee system can provide a very useful reference for the reform and perfection of the people's juror system in our country On the reference of the meaning, the dispute between the form of the interpretation of the form and the substantive interpretation of the criminal law of our country is greatly influenced by the form of crime and the substance in the criminal law of Japan. The influence of the dispute between the form of the crime and the substantive interpretation of the theory of crime includes a lot of misunderstanding, the differences between the two are exaggerated, and from the practice of the interpretation of the criminal law, there is no need to insist on a single interpretation position, and a non-pre-set position should be promoted to solve the problem A point-to-point, limited, practical master. The concept of the interpretation of the meaning of the criminal law. The case guidance system has been set up in our country, but it lacks the operability of its application in practice. It can be used to draw on the case system of Japan, to make clear the binding part of the guiding case, and to refer to the applicable law in the method of reference in the decision instrument. binding, changing procedures, and methods The relationship between the theory of people's jurors and the referees in Japan. However, the system of people's jurors in Japan is more successful, and the system of people's jurors in China is not sufficient for the people's jurors to exercise their functions and powers. therefore, the implementation effect is not obvious, the experience of the Japanese referee system can be taken into consideration, and in the framework of the current people's juror system, the independent position of the people's jurors is strengthened under the current people's juror system framework,
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D924.1
，
本文编号：2481991
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2481991.html
