德日犯罪论体系思维模式探究

任何犯罪论体系的建构都需要一定的思维模式作为其支撑点。目前 ,德日刑法学界普遍认为应以目的合理性为基础建构犯罪论体系 ,并对范畴论体系提出了批判。然而 ,作为目的合理性的实现途径是建构形式合理化的犯罪论体系还是实质合理化的犯罪论体系 ,见解并不一致 ,论争仍在继续。从当前德日通说体系各要素的功能和运作方式来看 ,形式合理化和实质合理化在体系中都有所体现。而在该体系中 ,行为概念并不是体系的要素而是体系运作的逻辑起点。

The Thinking Model of Criminal Theory System in Germany and Japan

Any criminal theory system takes some thinking model as its supporting point. Now,the majority of criminal scholars in Germany and Japan takes the aim rationalism as the base of the criminal theory system and criticizes the category theory system. However,the scholars show their differences in the realizing approach of aim rationalism. Some claim that formalization rationalism should be found and others claim substantive rationalism. The dispute is to be continued. But from the functions and operating ways of system factors in general opinions in Germany and Japan,both of the formalization rationalism and substantive rationalism are embodied in the system. And in this system,the concept of act is not the factor of the system but the logical starting point of the system operating.