我國共犯論刑法知識的淵源考察與命題辨正－－兼與陳興良教授商榷

Origin Expedition and Thesis Dispute on Joint Commission of a Crime in Chinese Criminal Law Knowledge: Discussion with Professor Chen Xing-Liang

我國共犯論邏輯體系的歷史嬗變和最終形成是一種歷史的文化選擇，其刑法知識淵源主要有我國傳統刑法知識、蘇俄刑法知識和德、日刑法知識三個方面，是綜合吸納和考量既有的“自我”和“他者”刑法知識的結果，因而難以簡單地以刑法知識“從蘇俄化到德日化”命題來進行某種學術上的是非判定。“ 從蘇俄化到德日化”的學術命題在本質上是某種“全盤西化”思想意義上的學術立場，其核心是主張以西方德日刑法文化為中心來審查中國現有刑法知識體系並重新建構中國未來的刑法文化，因而其本質上是某種“移植刑法學”的學術主張，難以獲得正當性。我國共犯論刑法知識體系建設只能是在借鑑吸納包括德日刑法學和蘇俄刑法學等在內的他國刑法學理論的基礎上改進完善自我，但絕不是喪失自我的“從蘇俄化到德日化”；完善方向應當是“根據中國的理想圖景”建設性地審查和完善既有的我國共同犯罪理論的漢語刑法知識體系框架，以刑法知識“中國本土化漢語化”命題取代“從蘇俄化到德日化”命題，科學理性地反思我國共同犯罪理論的宏觀體系定位，全面深入地研討我國共同犯罪理論的微觀疑難問題，以加固我國共犯論漢語刑法知識體系的規範定型並穩中求進地實現我國漢語刑法知識增量、邏輯自洽與理論創新。The historic evolution and final conformation of Chinese logic system of joint commission of a crime are a historical choice of culture, which mainly originate from traditional Chinese criminal law knowledge, former Soviet Russian criminal law knowledge and German-Japanese criminal law knowledge and result in an absorption, assimilation and integration of both traditional and foreign concepts. Thus it is not reasonable to make academic judgments by simplifying the evolution of Chinese criminal law as “from former Soviet Russian to German and Japanese”, which is an academic standpoint from the concept of “complete westernization” in essence. The core concept is to advocate reviewing current Chinese criminal law knowledge system and reconstructing future Chinese criminal law culture in accordance with western German-Japanese criminal law culture, the essence of which is “transplanting”, and it hardly gets any legitimacy. Therefore, the construction of Chinese criminal law knowledge system of joint commission of a crime must take the path of self-improvement based on drawing lessons from and taking in theories other countries, including German-Japanese and former Soviet Russian experiences, which shall never discard out own tradition by simply “from former Soviet Russian to German and Japanese”. The way of perfection should be “the ideal prospect defined by China”, reviewing and perfecting the acquired frame of Chinese criminal law knowledge system of Chinese joint commission of a crime constructively and replacing the path of “from former Soviet Russian to German and Japanese” with “Localization and Chinese Language First” strategy in criminal law knowledge. We should rethink the macroscopic definition of Chinese joint commission of a crime and deliberate the microcosmic difficulties deeply and comprehensively, in order to strengthen the specification and stereotype of Chinese criminal law knowledge system and gradually achieve the enrichment, logical self-consistency and theoretical innovation of Chinese criminal law knowledge.