中俄犯罪构成理论刍议

中国犯罪构成理论在构建之初学习前苏联的模式,认为犯罪与犯罪构成的关系是一般与特殊的关系,而俄罗斯刑法理论已经修正了犯罪与犯罪构成的关系,认为犯罪的外延大于犯罪构成,犯罪构成中没能容纳的决定刑事责任大小的因素都由犯罪概念加以补充,这一理论进步值得我们学习与借鉴.但中国刑法理论与前苏联及俄罗斯一样,都把犯罪构成作为刑事责任的根据,笔者认为,犯罪构成之外存在诸多影响刑事责任的成立及其程度的主、客观要素;司法实践证明,仅以犯罪构成来定罪而无视其他主、客观要素的价值 ,将不足以支持量刑.构筑合理的犯罪构成理论乃是中俄两国刑法理论走向成熟与发展的必经之途.

A Discussion on the Theories of Criminal Constitution in China and Russia

Theories of criminal constitution in China first borrowed from the former Soviet Union modes at its development stage, taking the relationship between crimes and criminal constitution as that between the general and the specific while those in Russia have already modified this relationship believing that the extension of crime is larger than criminal constitution and the factors determining the extent of criminal liabilities that are lacking in the criminal constitution are supplemented by the concept of crime. This theoretical progress is worthy of our study and borrowing. However, like that of the former Soviet Union and Russia, the Chinese criminal theory takes criminal constitution as the basis for criminal liabilities. The writer proposes that many subjective and objective elements exist outside criminal constitution that affect the establishment and extent of criminal liability. As is proven by judiciary practice, establishment of crimes simply based on criminal constitution without considering the merit of other subjective and objective factors is not adequate in supporting the measurement of penalties. Building up a reasonable theory of criminal constitution is a necessary path for the maturity and development of the criminal theories both in China and Russia.