邏輯與經驗：刑法積極一般預防理論質疑

Reflections on the Positive General Prevention Theory from the Perspective of Logic and Experience: Taking Corruption of Law-enforcement Officers as an Example

積極一般預防論主張通過刑罰向公眾提示行為規範，以引導國民行動、培養公民的法忠誠意識，進而實現犯罪預防，但它本身不是一個獨立的刑罰目的論。在邏輯上，積 極一般預防論以刑罰目的統領犯罪論，意圖實現犯罪論體系的目的理性改造，由此形成了功能責任論和行為無價值論，但前者過分關注個人責任之外的社會預防因素，導致責任概念失去了限制功能；後者則在不能犯等場合導致不法判斷主觀化，淪為行為無價值一元論，所謂的“結果無價值II”不成立。因此，不宜提倡以“目的證明手段”為信條的積極一般預防理論。

The positive general prevention theory supports that the penalty aims to guide citizens and to improve their loyalty towards law by reminding behavioral norms, which must be useful to preventing crime. But it is not an independent theory. The positive general prevention theory regards the intent of penalty as the highest leader in criminal jurisprudence, which feels like remolding crime theory law and brings about functional responsibility. theory and valueless behaviors theory. However, the former theory emphasizes the crime prevention, which makes the 'responsibility' lose its restricting function; the latter leads to subjectification in evaluating the invalidity of conducts. Besides, 'results worthless II' will be false. In reality, the unceasing corruption of law-enforcement officers has indicated that the law popularization function of penalty is too limited, and its effect of cultivating people's loyalty to law can be hard to come by. Therefore, the positive general prevention theory that takes 'purposes justifying means' as its dogma is not worthy to be advocated.