一種實質解釋的方法──刑事可罰性理論的功能糾偏與再造

A Substantive Legal Dogmatics Methodology: On the Function of Criminal Punishability Theory

可罰性理論作為刑法當中具體的解釋方法，其核心的價值並不在於排除可以置之不理的輕微不法，能通過可罰性理論出罪的往往是形式上符合構成要件且已經具有一定可罰程度的行為。尤其是對於缺乏實定法支撐的超法規的出罪事由，司法上可以運用可罰性理論對刑法分則條文所規定之具體犯罪的構成要件進行實質解釋，從行為所體現出的實質違法性、實質責任等角度實現更為妥當的釋法說理。行為的可罰與否不僅是一個結果，更應該是一個評價過程，以考察行為可罰性為根基的實質解釋方法需要在案件具體事實以及規範目的的基礎之上對價值、利益等展開比較、權衡。比如，公民因行使權利而侵害他人利益的場合，可以通過可罰性理論對行為的可罰性進行具體分析，權利的濫用有可能成立犯罪，但也有可能因為更高位階的價值、利益的選擇而阻卻犯罪。刑法解釋的邏輯起點始終需要回歸到有實定法支撐的構成要件之上，利益衡量基礎之上行為可罰性理論的提出便是要實現構成要件解釋的實質化。

Among Chinese criminal law scholars, there has been a misunderstanding about the Criminal Punishability Theory, which came from the famous One-Cent case in Japanese criminal law. Chinese criminal law scholars think the conduct's punishability can be equated with the concept of the Quantitative Elements of conduct in Chinese criminal law. Such misunderstanding, though beautiful, should still be corrected due to the obvious differences in the crime theory systems between China and Japan. In the Criminal Punishability Theory, the concepts of punishable illegality and punishable culpability, are not physical beings like the Quantitative Elements of conduct in Chinese criminal law, but rather a medium of value evaluation, which are influenced by the social context and the purpose of the norm. As a substantive legal dogmatics methodology, the core value of the Criminal Punishability Theory is not to exclude the minor wrongs which can be overlooked. Through the Criminal Punishability Theory, the conduct, which is formally consistent with the constituent elements and already has a certain degree of punishability, also can be treated as not a crime. Particularly, for the excusatory defenses and justificatory defenses which are not supported by statute law, the judge can apply the Criminal Punishability Theory to substantively analyze the constituent elements of conduct, and realize a more appropriate theoretical justification to describe the substantive illegality and the substantive culpability. The conduct's substantive illegality and substantive culpability, can be embodied as the result of the balancing of interests and values. The punishability of conduct is not only a result, but also an evaluation process under statute law, and the substantive legal dogmatics methodology measures the punishability of conduct by balancing the values, interests, etc., which is based on the specific facts of the case as well as the purpose of the norms. To arrive at legitimate and reasonable evaluation criteria and conclusions, in the process of the balancing of interests, the value of rights is always weighed against the obligations of citizens in a civil society. When a person infringes the legal-goods of others by exercising his or her rights, this can be analyzed through the Criminal Punishability Theory, where the abuse of rights may lead to the establishment of a crime, but it may also be prevented by a higher value. Even in complex and sensitive criminal cases, such as "confrontation with the legal order", it is possible to interpret the law and make an excusatory defense or a justificatory defense through this theory. The starting point of criminal law hermeneutics, is always the constituent elements of crime, and the purpose of the Punishability Theory is to realize the materialization of the interpretation of the constituent elements. In the sense of "the formation of judgment standards", the solution standard of all criminal law problems, from the constituent elements of conduct to the illegality and culpability, and even sanction, are closely related to the balancing of interests and values. The aim of the Criminal Punishability Theory is to guarantee the freedom of all citizens. Under China's crime theory system, if we could combine with the humanitarian law interpretation, the specific thinking of balancing of interests, and the constituent elements of crime, it will be undoubtedly the best way to show the modesty of criminal law. In sum, the substantive interpretation of the constituent elements of crime, the statute law and the balancing of interests behind the fact, form the Criminal Punishability Theory that can be applied in judicial practice. Through this theory, it is possible to effectively reduce the application of the catch-all crimes, whose constituent elements are not clear.