罪过基本问题研究

发布时间：2018-05-30 00:06

本文选题：罪过 + 基本　；参考：《西南政法大学》2008年博士论文

【摘要】： 犯罪同人类的其他活动一样,都是人类改造世界满足自身需要的实践活动,刑法学关于犯罪的研究应当以人类一般实践活动的基本原理为指导。本文从马克思主义的主体性理论出发,认为犯罪不仅仅是客观的事实性存在,它更是行为人满足自身需要的一种价值活动,是客观性和能动性、事实性和价值性的统一,犯罪的事实性内在于价值性当中,是属人的事实,价值才是事实的灵魂,能动性才是客观性的本质。犯罪的事实性只能放在价值结构的系统中理解,放在对人的关系和意义中来说明。人的行为总是在一定的思想支配下进行的,犯罪就是在罪过的支配下实施的。正是罪过将实施犯罪的行为人与犯罪连结起来。犯罪是主观见之于客观的行为,是行为人的自我确证,就是指犯罪是行为人主观罪过的实现,正是罪过赋予了犯罪行为的能动性和价值性。因为有了罪过,犯罪行为才能够归属于行为人,成为其“自己”的行为;因为有了罪过,犯罪行为才具有了反社会的性质,为国家整体法秩序所否定;因为有了罪过,作为一种社会行为的犯罪才与纯粹外在于人的自然事实不同,不能通过精确的自然科学的公式进行说明,而必须通过神入式的理解,认知其价值意义。对行为人与客观危害行为及其后果之间纯因果性的说明,只是刑法的基础性工作,在此基础上对危害行为及其后果意义的理解,也就是对罪过的理解,才是刑法关注的核心和焦点。作为支配行为人选择和实施犯罪的心理过程,罪过包括行为人对其所实施的客观的危害行为本身的态度和通过这种行为体现出的行为人对整体法秩序的态度。罪过既是一个事实结构,也是一个价值结构。同人类一般行为的心理过程一样,罪过包括认识、情感和意志三方面的因素。认识和意志都具有一定的实体性,即都能够通过一定的形式表现出来,而情感则是更为主观的一种精神体验,往往没有比较固定的表现形式,其价值通过对认识和意志的影响而得以体现。因此,认识因素和意志因素是罪过的基本因素。作为一种事实性存在,罪过的认识因素和意志因素分别包括行为人对其实施的危害事实的认识和意志;作为一种价值现象,罪过的认识因素和意志因素分别包括行为人对违法性的认识和违法的意志。罪过的认识因素意味着犯罪人认识到了自身处于匮乏状态,需要尚没有得到满足,自己采取怎样的手段来改善这种状态,满足自身需要,以及这种手段将会导致什么样的自然结果,同时也认识到了这样的手段是为国家法秩序所否定和不能容忍的,情感因素反映了犯罪人对现实状况的不满的态度,而意志因素则意味着犯罪人能够在法秩序所允许和容忍的范围内,采取行动,改善现实状况,满足自身需要,而他却自愿选择了法秩序所否定和不能容忍的手段,在本质上行为人与刑法所保护的价值或者利益相对立的心理态度。人的使命不仅在于认识世界,更在于改造世界。罪过的认识因素和情感因素都属于认识世界的范畴,都表现为相对静止的状态,意志属于改造世界的范畴,表现形式相对活跃。意志活动不仅是一种观念性的活动,更总是意向地为人们指出要追求什么,并进而要通过调控人们的对象性活动来实现既定价值目标,使自身得到外化、对象化,表现为一种行为,没有意志的行为是盲目的、缺乏方向感,从根本上讲不能称之为人的行为;没有表现为行为的意志则是虚无缥缈和苍白无力的,从根本上讲不能叫做意志。在认识因素和意志因素当中,意志因素决定着罪过的本质,也决定了罪过是观念性和行为性的统一体。罪过总是要体现在一定的犯罪行为当中,而犯罪也一定是罪过支配下的犯罪,脱离犯罪行为的罪过和脱离罪过的犯罪行为都是不可理解的。罪过的意志因素包括对事实的意志和违法的意志,对事实的意志承载着违法意志,违法意志寓于对事实的意志当中。犯罪是是反社会的行为,是孤立的个人反对统治关系的斗争,是蔑视社会秩序的最明显最极端的表现,刑罚不外是社会对付违犯它的生存条件的行为的一种自卫手段。但无论“统治关系”、“社会”还是“国家”都只能通过法规范、法秩序的形式体现出来,犯罪的反社会、反国家、反统治关系,总是表现为反法规范、法秩序。也正因为如此,行为人的违法意志集中体现其犯罪的本质。正因为犯罪是犯罪人的自我确证,罪过是犯罪人在犯罪中的体现,罪过及其实现程度对一个行为的刑法意义起决定作用,它不仅决定罪与非罪,也决定此罪与彼罪、重罪与轻罪、犯罪的形态,也是对犯罪人裁量刑罚的内在依据,并对刑罚的执行有着重要的影响。因此,罪过原则是贯穿犯罪、刑事责任和刑罚的一个基本原则,在刑法当中具有全局性和根本性。刑法学界倡导的主客观相统一原则解决了犯罪是主客观因素的结合,任何仅凭主观因素和客观因素定罪量刑的观点都是片面的、错误的。但是,主客观相统一原则始终没有解决主客观相统一的方式问题,就是谁统一谁,谁是核心,谁是灵魂,谁是本质的问题,始终没有得到解决。罪过原则在坚持认为犯罪是主客观因素相统一的原则下,以犯罪的客观性、事实性是基础,价值性、能动性是本质的理论为基础,主张主客观相统一应是主观统一客观,罪过统一行为,提出罪过原则应当成为刑法的基本原则。罪过一方面是观念性的存在,表现为犯罪人内在的心理过程;另一方面也是一种事实性存在,表现为客观的犯罪行为。因此,在司法实践中对罪过的认定主要有两种方法,一是审查判断被告人、犯罪嫌疑人的口供,二是通过事实推定的方式确定罪过。在现实的司法实践中,着眼于犯罪的客观表现及其危害后果,对被告人、嫌疑人进行客观归罪的现象比较普遍地存在。究其原因,一是因为长期以来,传统的刑法理论主流观点认为犯罪的本质特征是严重的社会危害性,不适当地降低了罪过在犯罪构成中的核心地位;二是认为罪过是主观态度存在于行为人内心,难以认知、难以查明的思想广泛存在,导致司法人员对于罪过望而生畏;三是刑法学对罪过的研究本身没有能够为正确认定罪过提供技术支持。
[Abstract]:Like other human activities, crime is the practice of human transformation to meet the needs of the world. The study of crime in criminal law should be guided by the basic principles of human general practice.
On the basis of the subjectivity theory of Marx's doctrine, this article thinks that crime is not only an objective fact, but also a kind of value activity that the actor satisfies the needs of his own. It is the unity of objectivity and activism, the fact and the value, the factual nature of the crime is the fact of the human being, and the value is the spirit of the fact. Soul, initiative is the essence of objectivity. The facticity of crime can only be understood in the system of value structure, and it can be explained in the relationship and meaning of human beings.
Human behavior is always carried out under the control of a certain thought. Crime is carried out under the control of a crime. It is the perpetrator of crime that connects the perpetrator with the crime. The crime is the subjective behavior, the self confirmation of the perpetrator, that is, the crime is the realization of the subjective guilt. It is the crime endowed with the crime. The activity and value of the criminal act. Because of the crime, the criminal act can belong to the actor and become his "own" behavior. Because of the crime, the criminal act has the nature of the antisocial and the whole law order of the state, because there is a crime and the crime of being a social act is purely outside the person. Different natural facts can not be explained by the exact natural science formula, but the value meaning must be recognized through the divine understanding. The explanation of the pure causality between the perpetrator and the objective harm behavior and its consequences is only the basic work of the criminal law, and on this basis, the understanding of the harm behavior and its consequences is also understood. It is the understanding of crime that is the core and focus of criminal law.
As the psychological process of selecting and implementing a crime by the perpetrator, the crime includes the attitude of the perpetrator to the objective harmfulness of the act itself and the attitude of the actor to the overall legal order embodied by the act. The crime is both a fact structure and a value structure. Crime includes three aspects of cognition, emotion and will. Both knowledge and will have a certain entity, that is, it can be expressed in a certain form, and the emotion is a more subjective mental experience, often without a relatively fixed form of expression, and its value is embodied by the influence of knowledge and will. The cognitive and willpower factors are the basic factors of the crime. As a factual existence, the cognitive and will factors of the crime include the cognition and will of the perpetrator to the fact that they are harmful. As a kind of value phenomenon, the cognitive and will factors of the crime include the behavior man's understanding of the illegality and the violation of the law, respectively. Will. The understanding of the crime means that the offender recognizes that it is in a state of lack, that it needs not to be satisfied, and what means to improve it, to meet its own needs, and what kind of natural results this means will lead to, and to realize that such a means is the order of the national law. The emotional factors reflect the offender's dissatisfaction with the reality, and the will factor means that the perpetrator can take action, improve the reality and meet its own needs within the scope of the law order and tolerance, while he voluntarily chooses the means that the law order denies and intolerances, in essence. The psychological attitude of the perpetrator and the value or interest protected by the criminal law. The mission of man is not only to know the world, but also to remould the world. All the cognitive and emotional factors of the crime belong to the category of the world, all of which are relatively static. The will belongs to the category of the transformation of the world and the form of expression is relatively active. It is not only a kind of ideological activity, but also the intention to point out what to pursue, and then to realize the established value goal by regulating the object activity of the people, and make itself externalized, objectified and acting as a kind of behavior. The act of no will is blind, lack of sense of direction, and can not be called fundamentally. It is human behavior; the will, which is not shown as the act, is illusory and feeble. It is fundamentally not called will. Among the factors of knowledge and will, the will factor determines the essence of the sin and the unity of the sense and the behavior of the crime. The sin is always reflected in the certain criminal act, Crime must also be a crime under the control of a crime. It is incomprehensible to offend from a crime and to commit a crime away from a crime.
The will factors of a crime include the will of the facts and the will of the law, the will of the fact, the will of the law, the will in the will of the fact. The crime is a anti social act, the struggle against the rule of the rule of the isolated individual, the most obvious and most extreme manifestation of the disdain of the social order, and the punishment not outside the society. No matter "ruling relations", "society" or "state" can only be embodied in the form of legal norms and law order, the anti social, anti state, and anti rule relations of the crime are always manifested by the anti law norms and the law order. Centralization embodies the essence of its crime.
Because the crime is the self confirmation of the perpetrator, the crime is the embodiment of the criminal in the crime. The crime and the degree of its realization play a decisive role in the criminal law of an act. It not only determines the crime and the non crime, but also determines the crime and the crime, the form of the felony and the misdemeanor, the form of the crime, and the punishment. It has an important influence. Therefore, the principle of crime is a basic principle that runs through crime, criminal responsibility and punishment. It has the overall and fundamental nature in the criminal law. The principle of unity of subjective and objective concept advocated by the criminal law academia resolves the combination of the subjective and objective factors of crime and the point of conviction for any punishment only by subjective and objective factors. It is one-sided and wrong. However, the principle of unity of subjective and objective view has never solved the problem of unity of subjective and objective view. It is who is unified, who is the core, who is the soul, who is the essence of the problem, and has never been solved. The principle of crime is that crime is the principle of unification of the subjective and objective factors and the objectivity of the crime. Reality is the basis of foundation, value and activity is the essence of the theory. It is advocated that the unity of subjective and objective should be subjective and objective, the unity of crime and the principle of crime should be the basic principle of criminal law.
On the one hand, the crime is the existence of the concept, which is manifested as the inner psychological process of the criminal; on the other hand, it is a factual existence and is an objective criminal act. Therefore, there are two main ways to identify the crime in judicial practice, one is to examine and judge the accused, the confession of the criminal suspect, and the two is the way of fact presumption. In the actual judicial practice, in view of the objective manifestation of the crime and its harmful consequences, the phenomenon of the objective guilt of the accused and the suspect exists generally. The reason is that, for a long time, the traditional mainstream view of the criminal law holds that the essential characteristics of the crime are serious social harmfulness and inappropriate. The core position of crime in the constitution of crime is reduced; two is that the subjective attitude of the crime is that the subjective attitude exists in the inner of the perpetrator, it is difficult to recognize, and it is difficult to find out the widespread existence of the thought, which causes the judiciary to be afraid of the crime, and the three is that the study of the crime in the criminal law does not provide technical support for the correct identification of the crime.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2008
【分类号】：D914;D917

【引证文献】