情节犯之情节的犯罪论体系性定位

在我国刑法定性加定量犯罪定义模式下,如何对刑法分则中的情节和数额要求即所谓定量因素进行教义学解释,明确其在犯罪论中的体系性地位,继而确定其与行为人主观方面的关系,是当代中国刑法学上难解的"理论之结"。通过剖析构成要件的不法类型本质与诠释学特征以及我国学界关于构成要件质与量关系的见解,可以看到被司法解释补充与修改的我国犯罪构成所具有的特性它不仅是德日刑法理论意义上的为行为不法与结果不法划定预设空间的不法类型,也是一个包含了基本构成要件、加重结果、客观处罚条件以及其他刑事政策因素的"类构成要件复合体"。由基本构成要件的行为不法和结果不法组成的"构成要件基本不法量域",为界定我国刑法中情节和数额要求的犯罪论体系性地位提供了重要的方法论工具。

Systematical Orientation of Circumstances in Theory of Crime Constitution

The Chinese criminal law is characteristic in that a great deal of offenses should amount to a certain seriousness demonstrated in certain circumstances prescribed by the penal law or its judicial interpretation in order to be regarded as a crime.How to define the requirement of serious circumstances in the so-called circumstance-delikts within the framework of crime constitution has been one of the theoretical difficulties in Chinese criminal law.Inspired by the quantitative analysis of the unlawfulness in German criminal law theory which allows a gradual variation of unlawfulness,the author finds that the crime constitution is the integrity of quality and quantity.Its quality is the punishable negative "thing" and varies within a certain limit.Thus an artificial separation of the quantity from its quality in dealing with circumstance-delikts as argued by some Chinese scholars can not be accepted. Based on this conclusion,the author constructs a theoretical analyzing tool,namely "the basic quantity range of unlawfulness" due to the basic idea that a certain crime as an unlawfulness type contains always a certain quantity of unlawfulness,to analyze the position of the circumstance requirements in circumstance-delikts.Using this tool,we manage to find that a majority of the circumstance requirements in circumstance-delikts in Chinese criminal law are covered by the basic quantity range of unlawfulness of these delikts and therefore are constitutive elements of them and can be regarded dogmatically as the "general normative evaluating elements".Consequently,the objective part of the "general normative evaluating elements" should be included in the intention in the case of intentional crimes,which means that the offender should know the factual foundation of serious circumstances in order to establish the crime.However,due to their normative evaluating nature,it is not necessary for the offender to understand the precise legal meaning of circumstance requirements.As to the other circumstance requirements in circumstance-delikts beyond the basic quantity range of unlawfulness of the related crime,it is possible for their orientation in the crime constitution only by specific dogmatic analysis.Some of circumstance requirements are actually aggravated results in the meaning of aggravated crimes,while some other can be treated as the objective prerequisite of punishment.And still others are factors of criminal policy and do not belong to the crime constitution any more.