探问"意欲"为何--对故意概念中希望和放任的新诠释

意欲是故意概念中的要素,但其涵义却在国内外刑法理论界引发争议,并因此影响间接故意概念在立法中的确定。意欲要素不等于意志因素,它是由情绪因素和意志因素共同构成的一种动态的、综合心理状态;我国故意概念中的“希望”和“放任”都是意欲的表现形式;并且,情绪要素可以成为量刑的酌定情节。

A Probe into What Intention Is for--A New Interpretation Concerning Whishing and Indulgence in the Concept of Willfulness

Intention is a key element in the concept of willfulness, but what it means has caused long disputes at home and abroad, which has also influenced the definition of the concept of indirect willfulness in legislation. The elements of intention is not equal to the willing factor, which is a kind of dynamic, comprehensive psychological condition consisting of mood and willing factors together. The wishing and indulgence in the concept of willfulness of our country are both the expression forms of willfulness; and the key element of mood can be the deciding circumstance in penalty measurement.