| 摘要: |
| “法律先于法学”的事实意味着负责罪责评价的人类道德直觉是刑法最初的立法依据，而刑法学理论回避解码道德直觉，选择了“填充犯罪分类表”的捷径，虽有刑法教义作补充，但终究没能揭示刑法的底层逻辑。罪责评价的绝对尺度是犯罪的预期损失，因此定罪量刑需要考虑破案率、作案成功率等决定刑罚威慑水平和犯罪预期损失的各种变量。以变量评估取代要件识别，可以有效应对刑事司法实践中的定性难题。 |
| 关键词: 犯罪构成理论 犯罪构成要件 抢劫 诈骗 边际威慑 |
| DOI： |
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| From the Distinguishment of Elements to the Evaluation of Variables： Solving the Difficult Problem of Conviction in Criminal Cases |
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Sang Benqian
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| Abstract: |
| The law predates its theories. In criminal law, the societys moral intuition about culpability had served as the original ground on which criminal law was built. The formal theory of criminal liability, however, has mostly bypassed the substantive analysis of the laws underlying moral intuition and has adopted the analysis of the assignment of criminal liability by putting together essentially a checklist of elements for each offense instead. Although such an approach appears practically useful and is also often supplemented by legal dogmatics, it falls short from time to time particularly when solving the hard cases where multiple types of offenses appear plausible for the defendant's act. Only by focusing on the underlying logic of criminal law may one appreciate that the critical rationale for culpability lies in the magnitude of a crimes expected loss. Therefore, all decisions on criminal conviction and sentencing must ultimately require an examination of the detection rate, the crime success rate and other variables that affect the level of deterrence and the expected loss from a crime. Replacing the element checklist with a methodology that focuses on analyzing these substantive variables may effectively solve the practical difficulty of differentiating offenses for criminal conviction. |
| Key words: Formal Theory of Criminal Liability, Elements of Crime, Robbery, Fraud, Marginal Deterrence |
