| 英文摘要 |
For some criminal law scholars, an offender’s “guilt” or blamewor-thiness is a psychological fact about the offender. Others take his “guilt” to be the result of a normative ascription of blame. The question which of these perspectives is preferable does not merely raise a theo-retical problem. The answer is decisive for the reach of the criminal law’s culpability principle. This paper illustrates this point with two ex-amples. The first example concerns the criminal liability of an offender who has acted in a state of self-induced incapacity arising from volun-tary intoxication. In contrast to Taiwanese criminal law (see section 19(3) of the Criminal Code of Taiwan), German criminal law does not exclude offenders who have in a blameworthy manner brought about their own lack of capacity from the application of the provision concern-ing offenders lacking criminal capacity (section 20 of the German Crim-inal Code). Against provisions such as the one found in Taiwanese law, scholars who defend the German position argue that to exclude an of-fender who culpably brought about his own lack of capacity from an incapacity-based defence is to violate the principle that an offender’s prohibited conduct must coincide with his culpable state of mind (the correspondence principle). They therefore conclude that the solution preferred by Taiwanese law violates the culpability principle. This paper argues that this critique misses the essentially normative character of criminal guilt. As a normative notion, criminal guilt can attach to behav-iour that in temporal terms is performed before the criminally prohibited conduct is carried out. The second example concerns the question whether the culpability principle functions in an “all or nothing” way or whether a particular criminal provision can comply with the culpability principle to a greater or lesser degree. It is argued that the prevailing notion in the literature that treats the culpability principle as binary is based on an ontological understanding of guilt/blameworthiness (guilt as a psychological fact). On the basis of a normative conception of culpability (guilt as the at-tribution of blame), further differentiations become possible. The culpa-bility principle is, then, indeed interpreted as a principle (in the legal-theoretical sense) rather than as a rule. Both interpretations have their own advantages and drawbacks. A consideration of these should lead us to interpret the culpability principle in its core area of application as a rule, and in its penumbral area of application as a principle. |
