"客观的超过要素"相关问题研究--与张明楷教授商榷

以危害结果为内容的"客观的超过要素"的犯罪都是过失犯罪,以行为的程度、次数等要素为内容的"客观的超过要素"可以借鉴客观的处罚条件理论,"客观的超过要素"的名称也不合理;"双重结果"的划分导致以危害结果为内容的"客观的超过要素"不可避免地陷入了"双重罪过"的泥潭;提倡者对以危害结果为内容的"客观的超过要素"的罪过形式有误解,使人产生"客观的超过要素"与客观责任相联系的疑问,有必要对相关问题做出说明.

On the Relative Problems of "Objective Exceeding Factors"

All of crimes of "objective exceeding factors"which regard injury results as contents are unpremeditated crimes.The "objective exceeding factors" which regard degree or frequency of acts as contents can draw lessons from the theory of objective conditions of punishment.The denomination of "objective exceeding factors" is unreasonable;The division of "double results" has made "objective exceeding factors" which regard injury results as contents inevitably fall into the slough of "double debts".The advocator has misunderstood to the offense form of crimes of "objective exceeding factors",which makes people doubt that there is a relation between "objective exceeding factors" and objective responsibilities.Therefore,it is necessary to explain some relative problems.