刑法身份的实质客观论-《南京师大学报（社会科学版）》

文章信息/Info

Keywords:: illegality identity; (constitutive)accountability identity; system of criminal theory; theory of substantive objectivity

摘要:: 客观属性系刑法身份本质内涵。刑法身份由构成身份与责任身份组成。犯罪论体系影响构成身份性质,三阶层构成要件论体系是构成身份成立的理论基础。身份依附于行为人,行为人系构成要件要素,构成要件系违法行为类型,构成身份分为构成的违法、责任身份。身份法益侵害危险系违法身份本质; 理论上身份非难可能性系构成的责任身份之本质,但身份不能为非难对象与且有责性本质相悖,故该身份不存在,构成身份系违法身份。责任身份影响刑罚轻重,系量刑情节,刑罚目的系其存在根据。刑法身份由违法身份与责任身份构成。

Abstract:: Objectivity is the essential connotation of identity in criminal law, which partly recognizes the element of subjective identity according to the necessity of penalty. Identity in criminal law consists of constitutive identity and accountability identity. The system of criminal theory is related to the nature of identity, and the three-tier system of Tatbestand serves as the theoretical basis of constitutive identity. Identity is possessed by the actor, who is also a constitutive element of crime. The constitutive elements of crime define the illegality of a crime, and thus the element of the actor’s identity should include two aspects: illegal action and capacity of accountability. The nature of the constitutive element of identity lies in its danger of infringing others’ legal interests. Although the identity cannot be the object of accountability because of its contradiction to the essence of accountability, theoretically accountability identity is a false concept. So identity as a constitutive element can be nothing but a cause for unlawfulness. Accountability identity, however, plays an important role in determining penalty. It belongs to circumstances for sentencing, and the aim of penalty accounts for its existence. Thus, identity in criminal law is composed of illegality identity(i.e. identity leading to illegality)and accountability identity.