不法是客观的,责任是主观的?——对当下归属理论的一种质疑

“不法是客观的,责任是主观的”之主张既无法合理应对“中立”帮助行为的可罚性问题以及行为人主观上存在特别认知的侵害情形,也不契合处罚不能犯未遂的司法现状。“先客观后主观”的审查顺序在自然科学上的合理基础不复存在,权利保障理念与不法的客观性间也不存在必然关联。客观优先的审查顺位的优势主要体现在程序法而非实体法。主客观二分法并不现实:“目的性动词”使主客观要素无法完全割裂,主观要素缺位可能无法评价不法的有无,主观要素还能够影响到具体的不法类型判断以及行为危险的程度。主观故意和行为人的特别认知在不法判断中的地位已然无法撼动,至少在故意的作为犯中,客观归属论已名实难副。主客观二分式的犯罪构成模式并不符合事物的本来面目,两者也不存在绝对的先后次序,主客观相结合的不法判断才更加贴合实际。因此,应当重新审视责任要素的范畴,故意、目的等要素实际上应归入构成要件的领域。否定客观不法论,“不法与责任的区分”才得以真正确立。

The Wrongdoing Is Objective,the Liability Is Subjective?--A Query on the Current Imputation Theory

The proposition that “the wrongdoing is objective and the liability is subjective” can neither reasonably deal with the punishability of “neutral” assisting behavior and the infringement situation that the actor has special cognition subjectively, nor fit the judicial status quo of punishing impossible crime. The rational basis of “objective first and subjective second” in natural science no longer exists, and there is also no necessary connection between the concept of right protection and objective wrongdoing theory. The advantage of objective priority lies in procedural law rather than substantive law. The subjective and objective dichotomy is not realistic: purposeful verbs make the subjective and objective elements unable to be completely separated;the absence of subjective factors may not be able to evaluate the existence of wrongdoing;subjective factors can also affect the judgment of specific wrongdoing types and the degree of behavioral danger. The status of subjective intention and the special cognition of the actor in the wrongdoing judgment can not be shaken, at least in the intentional act crime, the theory of objective imputation does not live up to its name. The subjective and objective dichotomous pattern of crime constitution does not conform to the true colors of things. There is also no absolute order between the two, and the wrongdoing judgment combining subjective and objective factors is more practical. Therefore, we should re-examine the scope of the elements of liability. In fact, the elements of intention and purpose should be included in the field of constitutive elements. Only by denying the objective wrongdoing theory, “distinguishing wrongdoing from liability” can be truly established.