罪责的客观化与期待可能性理论的命运

当代刑法对风险控制与危害预防的强调,使得罪责概念的内容经历了重大的变化。随着对行为人的控制能力的强调,以选择自由为基础的传统规范责任论被废弃。期待可能性被从责任论中剥离出来,其重要性也日益呈下降的趋势。期待可能性理论在当代所遭遇的命运,折射出刑法任务观的重新定位对刑法体系中具体制度与理论的重大影响。

Objective Culpability and the Fate of Reasonable Expectation

Focusing of present criminal law on risk control and harm prevention has led to a drastic change in the concept of culpability. With emphasis upon individual’s self-control ability, the traditional normative culpability based on choice freedom has been discarded. As a result, reasonable expectation as a normative standard is separated from the theory of culpability and is increasingly becoming less significant in the regime of criminal law. The sad fate of reasonable expectation in the contemporary era reveals how much that the specific institutions and theories may be influenced where the tasks and aims of criminal law are reevaluated.