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本文致力于研究犯意在法律中的地位问题。在国家和刑法理论的基础上得出刑法不惩罚意识犯这一明确的结论。刑法只关注违法行为,不考虑作为潜在危险的唯一表现的犯意。这一结论适用于整个刑法领域,为在刑法解释和刑法裁量中排除犯意因素铺平了道路。刑法中不允许引入犯意因素使得另一法律领域得到关注,在此领域关注个人的内心活动且遵守宪法上的比例原则具备合法性。此即警察法,它旨在从根源上防止危险行为人可能制造危险的发生。如果允许通过犯意来评估个人的潜在危险性,则对犯意的判断将非常有助于合理地履行危险预防任务。目前的法律体系使得镇压和预防的严格区分逐渐消失,而它通过划分刑法和警察法作为法治国家的产物。与此相反,这里提供了很多反映刑法不断强化作用于危险预防的场景,它随着犯罪行为的事实构成、构成要件或者刑法裁量因素而出现,更多关注恶的深层思想,而不是对违法行为的反应。本文反对这一消极发展,试图通过分析法治国家原则,维护刑法排除犯意因素这一界限。在这里起决定作用的是保障法治国家中自由和安全的平衡关系。过分追求安全导致的不平衡可能是本文所批判的犯意因素加强的原因。
This article is devoted to studying the position of guilty in law. On the basis of the theory of state and criminal law, we come to the clear conclusion that criminal law does not punish the criminal. Criminal law only focuses on offenses and does not consider the foul of being the only manifestation of potential danger. This conclusion applies to the entire field of criminal law, paving the way for the exclusion of offensive elements in the interpretation of criminal law and criminal law. Criminal law does not allow the introduction of a frivolous element that draws attention to another area of law where it is legitimate to focus on the individual’s inner activities and respect the constitutional proportionality principle. This is the police act, which seeks to prevent, from the root causes, the danger that dangerous actors may create. If the permissible potential risk of an individual is allowed to be assessed, the guilty judgment will be very helpful in reasonably performing the hazard prevention mission. The current legal system has allowed the strict distinction between suppression and prevention to disappear, and it is a product of the rule of law through the division of criminal and police laws. On the contrary, there are many scenes reflecting the ever-intensifying role of criminal law in preventing danger. It appears along with the factual constitution of criminal acts, the constituent elements or the criminal law discretion, paying more attention to the evil deep thoughts rather than to the illegal acts Reaction. This article opposes this negative development and attempts to maintain the boundary of excluding criminal elements from criminal intent by analyzing the principle of the country under the rule of law. The decisive factor here is the guarantee of a free and safe balance between the nations ruled by law. The excessive pursuit of security-led imbalances may be the reason for the aggravating factor criticized in this article.