功能責任論中責任和預防的概念－－兼與馮軍教授商榷

The Concepts of Liability and Prevention in Functional Liability Theory A Discussion with Professor Feng Jun

今天德國刑法的任務已經從罪責報應轉變為預防，與此同時，規範責任論開始被 功能責任論所取代。預防的思想進入犯罪論體系後，作為刑法教義學傳統概念的責任與預防的關係便成為討論的焦點。Jakobs認為責任和預防有共同的本質，責任是由一般預防確定的。Roxin採取了比較折中的做法，並且贏得了多數學者的支持。他主張在形式上完全保留責任，但要補充進預防性處罰必要性的因素，並將這一綜合體稱為負責性。德國刑法教義學緊密結合立法的傳統提醒我們，要從本國現行法出發選擇最切合實際的責任觀念。我國刑法在犯罪論中原則上採用的是規範責任論，只在分則個別條文中突破規範責任論的範圍，將預防的必要性納入犯罪成立的前提，而在量刑規則上卻全面體現了功能責任論的主張。

In contemporary the task of the German Criminal Law has changed from retribution of guilt to prevention. At the same time, the normative liability theory has been replaced by functional liability theory. However, since the concept of prevention grew more influential in the system of crime constitution, academic discussions focused on the relationship between liability and prevention. Jakobs thinks that liability and prevention have a common essence. In other words, the liability is determined by general prevention. Roxin takes a more eclectic approach, which has been supported by the majority of scholars. He advocates fully retained liability in form, but would like to also emphasize the necessity of preventive punishment. He calls this complex accountability. The development of German criminal law doctrine reminds us that the conceptual evolution of liability must be based on national legislation. Through the examination we can see that the Chinese Criminal Law in principle follows the normative liability theory, while only a few articles in specific provisions break the rule and bring the necessity of prevention into the premise of crime constitution. In contrast, the sentencing rules have fully embodied the functional theory of liability.