刑法人格主义的检讨与革新

刑法人格主义的思想发源于刑法主观主义阵营,经过刑法客观主义阵营的批判与吸收,在当代演化成人格刑法学等理论成果,并成为折衷主义的重要产物。发展中的刑法人格主义应当遵循法治的基本精神,谨慎地对待人身危险性问题,决不能抛弃行为这一基本概念而陷入主观主义的危险境地。西方国家将人格因素渗透到刑事立法的事实,暗合了我国刑法学理论的发展趋势,有必要科学地对待人格因素在定罪机制中发挥的作用,并在量刑和行刑过程中及时推广人格调查制度和人格矫正制度。

A Critical Consideration of Personalism in Criminal Law

Personalism in criminal law was first introduced by criminal jurists with subjectivist ideas,which has,after being critically assimilated by the jurists,with objectivist ideas,yielded lots of fruits,such as the criminal jurisprudence of personality,and it become an important production of eclecticism.While improving personalism,we should,in this author's opinion,suit the fundamental spirit of government in accordance with a system of law,discretionally settle the issues concerning personal safety,and never ignore an act(an essential concept in criminal law) so as to be trapped in a subjectivist plight.In western countries,the fact that people mix personality elements with criminal laws indicates that we,too,may similarly advance our criminal law theories.It is necessary for us to consider scientifically the important role played by personality elements in the mechanism of conviction and timely establish a system to probe and correct the personalities of the accused.