犯罪构成与诸特殊形态之关系辨析
冯亚东犯罪构成与诸特殊形态之关系辨析
Relationship between Constitution of a Crime and its Special Forms
期刊名称：《法学研究》
期刊年份：
作者：冯亚东
单位：西南财经大学法学院
中文关键词：
英文关键词：constitution of a crime;act without criminality;incompleteness of a crime;complicity;quantity of crime
中文摘要：
犯罪构成系刑法学理论对行为成立犯罪之基本条件的概括，其同犯罪诸特殊
形态之间在逻辑上存有一种“一般与特殊”的转承关系。但在我国刑法学界所沿袭的前苏联的刑法理论中，始终对这种转承关系未能作出适当的解释与安排，存在一些含混甚至错误的提法，以致学界长期在体系的逻辑结构问题上纠葛论战，从而对一些疑难案件的处断产生负面影响。于此，有必要在中国通说性的犯罪论的基础上，以德日刑法理论为参照，对犯罪构成同诸特殊形态之间的转承关系进行辨析梳理，以完善中国刑法学犯罪论体系。
英文摘要：
Constitution of a crime is the generalization of the basic elements of a crime by criminal theory. There exists one kind of derivative relationship, that is, a “general-special” relationship, between the constitution of a crime and its special forms. However, following the criminal theory of Soviet Union, our popular theory has not made proper interpretation and arrangement for this kind of relationship, so that there have always been heated debates on the problem of logic framework in academic circles. This article aims to analyze such relationship.Firstly, act without criminality refers to the act which looks like a crime but is permitted by criminal law, such as justifiable defense and emergency action. In the view of the constitutive elements of a crime, such act does not satisfy the basic constitution of a crime, with the criminal object and the subjective aspect in absence. Secondly, according to criminal theory, intentional crime can be constituted by complete or incomplete act. The incompleteness of a crime includes the preparation, attempt and discontinuance of a crime. It is generally hold that the basic constitution of a crime is based on a complete crime, but through close analysis of our basic theory of crime, the incomplete form of crime can also be reasonably interpreted according to constitution of a crime.Thirdly, complicity in the criminal theory aims to study on the special conditions and special problems when several persons commit one crime. The doctrine and content of general constitutive requirements can be applied into the special form of complicity.Lastly, compared to complicity, the problem of quantity of crime will arise when one person commits several crimes. Although the constitution of a crime is the basic criterion to determine the number of crime, the concrete judging criteria should be established by the concrete analysis of specific circumstances. In this view, our popular theory has exaggerated the significance of constitution of a crime to the quantity of crime.
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