Abstract
行为无价值论与结果无价值论的争论具有重要意义。行为无价值论的主要缺陷在 于：强调犯罪的规范违反性，与保护法益的刑法目的相冲突；突出刑法的行为规制 机能，偏离了罪刑法定主义的实质；普遍承认主观的违法要素，导致认定犯罪的整体 性，既混淆了违法性与有责性，也不利于区分未遂犯与不能犯，且不利于贯彻共犯从 属性说；注重主观的正当化要素，不仅未能限制刑罚适用，反而扩大了处罚范围；采 取规则功利主义，导致过度干预国民的行为。结果无价值论在防止过度干预、采取自 由主义原则的同时，将违反刑法目的的事态作为禁止的对象，不仅能够克服行为无价 值论的缺陷，而且可以在实现报应正义的同时，实现特殊预防与一般预防。 关键词: 行为无价值 结果无价值 犯罪论 刑罚论 The debate between the theory of anti‐value acts (Handlungsunwert) and the theory of anti‐value consequences (Erfolgsunwert) is of great significance. The main defects of the former are that it focuses on crime as a violation of norms, which runs counter to criminal law's aim of protecting legal interests; it highlights criminal law's function in regulating behavior, thus deviating from the essential principle of a legally prescribed punishment for a specified crime; and it gives wide acceptance to subjective elements of illegality, leading to a holistic determination of crime, thus confusing illegality with responsibility. It also blurs the distinction between attempted and unrealized offenses, and is not conducive to the application of the theory of the subordination of accomplices. Its focus on subjective legitimized elements not only fails to restrict the application of punishments, but actually expands their scope, and its adoption of rule utilitarianism leads to undue interference in citizens' conduct. The theory of anti‐value consequences prevents undue interference and adopts the principle of liberalism, while at the same time taking as the target of its prohibitions those situations that contravene the aims of criminal law. This not only overcomes the shortcomings of the theory of anti‐value conduct but also achieves general and special prevention while realizing retributive justice.
Published Version
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