論從輕罪到輕犯罪及出罪路徑

Discussion on the Transition from Minor Offenses to Minor Crimes and the Rational Path to Exoneration

隨著積極刑法觀的深入，我國刑法立法結構呈現出輕罪立法走向，但若想用輕罪概念囊括立法和司法兩方面的本質特徵是勉為其難，也易產生歧義。合理的思路是在堅持輕罪概念所反映的立法本源性特徵基礎上，採用輕犯罪概念以充分展示動態司法過程與司法態勢。對於輕犯罪的治理問題，首先需要明確阻卻犯罪成立的理論支撐與出罪支點，即在堅持我國犯罪構成體系的前提下以《刑法》第13條但書及正當化事由作為出罪的主要通道。我國四要件犯罪構成體系遵循了從事實判斷到規範判斷再到價值判斷、從客觀判斷再到主觀判斷這一判斷犯罪成立的基本規律，而且同樣具有出罪的構成要素。其次是建立社會危害性的綜合評價標準，即從主客觀兩個方面來把握《刑法》第13條但書中“情節顯著輕微”的標準。最後是強調輕微犯罪的治罪與治理，針對輕微犯罪的不法應堅持實質違法性的判斷，切勿以違反前置法這一形式外觀為由忽視實質判斷。

With the deepening of the proactive criminal law perspective, the legislative structure of China's criminal law shows a trend towards minor offense legislation. However, attempting to encompass both the legislative and judicial essential characteristics using the concept of minor offenses alone is an overly ambitious task, prone to creating ambiguities. A reasonable approach is to adopt the concept of minor crimes to fully demonstrate the dynamic judicial processes and trends, while maintaining the original legislative characteristics reflected by the concept of minor offenses. In addressing the governance of minor crimes, it is crucial to first clarify the theoretical support and exculpation points for precluding the establishment of a crime. This means using Article 13's exception clause of the Criminal Law and grounds for justification as the primary channels for exculpation, while adhering to China's crime constitution system. Although the framework differs among China's four-elements crime constitution system, the continental law system's hierarchical approach, the Anglo-American binary system, the constitutive elements of culpability within these frameworks are the same. They all consist of objective and subjective elements, specifically including conduct, result, causation, specific times and places, the actor (including special actors), and subjective guilt (including specific criminal intents and motives). Moreover, China's four-elements crime constitution system also follows the basic rule of determining crime establishment, which progresses from factual to normative to value judgment, from objective to subjective judgment, and similarly includes exculpatory elements. In the crime constitution system, legitimate conduct (such as justifiable defense and emergency avoidance) in the objective aspect serves as a pathway for exculpation. Second is establishing a comprehensive evaluation standard for social harm, considering both objective and subjective aspects to grasp the ''significantly minor circumstances'' standard in Article 13's exception clause of the Criminal Law. Objectively, this requires a comprehensive examination of the manner in which the actor carried out specific conduct, the harm or high risk of harm to legal interests caused by the conduct, the time and environment during the conduct, the actor's behaviors after completing the conduct, the illegal proceeds and their disposition, and whether the victim was at fault, consent and content. Subjectively, this involves evaluating the actor's motives and purposes, subjective cognition, whether coercion or control was involved, consistent behaviors, signs of remorse, the possibility of recognizing illegality, and whether there was an attempt to evade investigation. Finally, the penalization and governance of minor crimes should be emphasized. First, the concept of reasonable exculpation for minor crimes should be established. Due to their nature of minor illegality, there is a challenge in delineating boundaries between criminal unlawfulness and administrative or civil violations among pre-existing laws like civil or administrative regulations. When unclear or indeterminable, the principle of in dubio pro reo should be followed for exculpation. Second, the judgment of substantial illegality should be adhered to. Minor infringing behaviors, after meeting the necessary objective and subjective elements, should be exculpated according to the thorough standard of substantive illegality assessment provided by Article 13's exception clause of the Criminal Law. One must not ignore substantive judgments under the guise of merely violating pre-existing laws.