论内在的客观处罚条件
周光权论内在的客观处罚条件
Internal Objective Punishment Condition
期刊名称：《法学研究》
期刊年份：
作者：周光权
单位：清华大学法学院
中文关键词：犯罪成立条件;内在的客观处罚条件;非典型的违法要素说;外在的客观处罚条件
英文关键词：constitutive elements of crime;internal objective punishment condition;atypical element of illegality;external objective punishment condition
中文摘要：
在犯罪构成四要件说中，客观处罚条件没有存在余地。但是，在我国刑法立法中，已经出现一些关于客观处罚条件的条文。如何理解和适用这些规定是理论上不可回避的问题。国外的通说认为，所有的客观处罚条件都不要求行为人认识和预见。但是，笼统地看待客观处罚条件，有将复杂问题简单化之嫌。坚持阶层式的犯罪成立要件理论，根据某种条件和违法性的关系密切程度，可以将客观处罚条件分为内在的客观处罚条件和外在的客观处罚条件。承认内在的客观处罚条件概念，客观的超过要素概念就没有必要再提倡。
英文摘要：
In the theory of four-element crime constitution, there is no room for the objective punishment condition. But the objective punishable condition already exists in the criminal legislation of our country now. How to understand and apply these provisions is an issue that cannot be avoided in theory. The general view in the foreign countries is that the objective punishable conditions do not require the actor’s cognition and foresight. However, regarding the objective punishable condition in general is suspected of oversimplifying the problem. According to substantial connection between some certain condition and illegality, the objective punishable condition can be divided into the internal and external condition two types, if we insist on the hierarchical constituents of crime theory .The most worthy of discussing is the internal objective punishable condition. It is in the “extended line” of behavior which increases the risk of infringing the interest in law when intervening factors appear. Although it is different from typical illegal element, it can produce illegal effect. Actor just needs to know the possibility of internal objective punishment condition. To the contrary, external objective punishment condition belongs to the category of criminal punishment, has no effect on the illegality and responsibility, and does not require the cognition and foresight of actors.The research of internal objective punishment condition is of great significance to understand and apply some provisions in our criminal legislation. There is necessity for the internal objective punishment condition to exist in the present stage. To put it further, recognizing this concept is in consideration of the doctrines of legally prescribed punishment for special crime and legal interest protection. If we recognize this concept, there is no need to advocate the concept of “objective surpassing elements”. The problems regarded under the name of objective surpassing elements can be analyzed according to the approach of internal objective punishment conditions.
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