犯罪构成体系平面化之批判
刘艳红犯罪构成体系平面化之批判
Criticism on the Plane System of Constitution of a Crime
期刊名称：《法学研究》
期刊年份：
作者：刘艳红
单位：东南大学法学院
中文关键词：主客观相统一;犯罪构成;平面化;客观主义;阶层化
英文关键词：unification of subjectivity and objectivity;constitution of a crime;plane;objectivism;ranking nature
中文摘要：
以主客观相统一的定罪原则为基础，我国刑法形成了主客观有机统一的犯罪构成理论；基于辩证唯物主义全面联系视角对有机统一的解答，导致了犯罪构成体系的平面化。平面化犯罪论体系存在着似是而非与规范说理缺失、定罪过程中的主观化与入罪化、无法应对实践需求以及主客观要素混淆等诸多理论与实践问题。我国刑法应该摒弃泛而论之的主客观相统一原则及平面化犯罪构成体系。以客观主义为立场、以明确界分客观与主观要素为内容、以阶层化为结构的犯罪论体系，应该是今后我国犯罪论体系的探讨方向。考虑到违法与有责在当今刑法理论中与构成要件符合性判断的融合趋势，以违法和有责为支点构建二阶层的犯罪论体系应该是反制平面化犯罪构成体系的最好出路。
英文摘要：
The theory of the constitution of a crime in China is formed basing on an organic unification of subjectivity and objectivity. From the viewpoint of comprehensive connection in Marx’s dialectical materialism, the organic unification of subjectivity and objectivity results in various relationships among essential subjective and objective elements. Therefore, the constitutive elements of a crime are all in a plane and there exists no hierarchical level among them.This theoretical system is harmful in criminal law theory and judicial practice. Such a system emphasizes the unification of subjectivity and objectivity, but it is tremendously challenging to implement it. It is considerably paradoxical in logic, falling into the category of typical tautology. Besides, it is commonly considered that the subjective elements are superior to the objective ones, which leads to the fact that the subjectivist conclusion is usually drawn in the name of integrating subjectivity and objectivity in conviction. Further, subjective judicial thinking of conviction results in incrimination. It can not solve efficiently a variety of practical problems, such as distinguishing perpetrators from instigators or accomplice, determination of indirect principle offenders and commencement, disposal of accidental defense, and application of specific crimes. In addition, it leads to confusion and other problems in layer and nature of the subjective and objective elements in the criminal law in China.Thus this system faces the destiny of end because of the various problems mentioned above. In subjective and objective values, Chinese criminal law should choose objectivism rather than subjectivism. Because the sequence of criminal facts determines that the system of criminal constitution should be from objectivism to subjectivism. Meanwhile, the feature of the penalty of criminal law also determines the same superiority. Considering the trend of combining violation and culpability with conformity with the constitution in the modern criminal theory, establishing a two-tier theoretical system with violation and culpability should be most efficient way to attack the plane system of criminal constitution.
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