摘要
行为论是刑法学中的一个重要单元,它为犯罪概念提供基底,为犯罪论体系提供前置性条件。在我国传统的刑法学中,行为论严重地被忽视,甚至根本就没有行为论的体系性地位。尤其是在四要件的犯罪构成中,以危害行为作为客观要件的内容,强调行为的危害性,而对行为本身的本体性要素则缺乏深入研究。随着德日三阶层的犯罪论体系的引入,开始出现了从危害行为到构成要件的行为的转变。本文采用学术史的方法,对这一转变过程作了描述。
As an important part of criminal law, the conduct theory lays the foundation for the concept of crime, and also provides precondition for the analytic structure of crime. The conduct theory has been neglected in Chinese traditional criminal law for long time. Even, there is no room for the conduct theory at all. Especially, in the traditional four - requirement theory of analytic structure of crime, it is not the factor of conduct but the factor of harmful conduct that is seen as the essential element of objective requirement --one of the four requirements of a crime. So that traditional criminal law emphasizes on the harmfulness of a conduct, not on the conduct itself. Consequently there is no in - depth study on conduct itself. With the German and Japanese tripartite scheme being introduced into Chinese criminal law, experts begin to transform their focus from the harmful conduct to the culpable conduct, that is, conduct as a factor of a criminal offense in the formal sense. This article will describe the course of this transformation from the perspective of the academic history.
出处
《中国法学》
CSSCI
北大核心
2009年第5期172-190,共19页
China Legal Science
