功能刑法與責任原則

雅科布斯試圖借助系統論重構刑法責任概念，認為刑法的目的在於維持一種“規範性期待”，行為是“可避免的結果實現”，刑法責任是一個與自由意志不相關的範疇，是“缺乏遵守規範的主導動機”。但系統論社會學不適合作為刑法的奠基性理論。因為刑法不能只從外部觀察，還要從內部回答關於刑法規範合理性的問題。堅持責任原則首先要確立獨立的責任內容，而不能將責任和預防循環論證式地相互替代。羅克辛將體系性概念責任通過引入預防的刑罰必要性來補充作為體系性概念的責任，並為兩者建立起一個新的體系範疇，用這種方法打通了犯罪論和刑罰論的鴻溝，將責任和預防結合在一起。應當認為責任是對相對自由的濫用，這樣責任就跟經驗性的結果聯繫起來，預防不再獨立於責任存在而是內嵌於責任之中。

Jakobs tries to restructure the criminal law dogmatic with the system theory and redefine the concept of culpability into functional culpability. He believes that the purpose of criminal law is to maintain the '' normative expectations'' and that an act is the accomplishment of avoidable results. The criminal law culpability is not based on free will, which is the ''lack of dominant motivation to comply with norms''. However, the system theory is not suitable as the foundation of criminal law because the criminal law cannot only be observed from outside, but also have to answer the question about the rationality of the criminal norms from the inside. In Jakobs’ theory, culpability is reduced to a pure formal imputation, which is a tautological formulation in fact. Roxin supplements the systemic conception ''culpability'' with the necessity of preventive punishment and establishes a new system category for the two. This method breaks through the gap between criminal theory and penalty theoryso that the criminal law of guilt and the preventive criminal law can be reconciled. Because of this, Roxin’s point of view has received more support. This article argues that culpability is the abuse of relative freedom, which means that culpability is linked to empirical results and prevention is no longer independent of culpability but embedded in it.