The relationship between the doctrine of criminal law and criminal policy from the Liszt divide to the expansion of Roxin through the Chinese context

The relationship between criminal law doctrine and criminal policy from the Liszt divide to the relationship between Roxin and Chen Xingliang under the context of Chinese context. The author cuts in from the Liszt gap. Liszt strictly divides criminal law doctrine and criminal policy; de-doctrine has become a form of empirical discipline, completely excluding value judgment. As a result, the criminal theory system of the classical school is formed; and the criminal policy is outside the doctrine of criminal law. Study it in the penal theory. It is based on the purpose of thought. Especially pursue the effect of special prevention. Liszt's idea of ​​separating and alienating criminal law doctrine and criminal policy to form the so-called Liszt divide through the neoclassical criminology system and the skopos theory of crime theory, Roxin penetrated the Liszt divide To introduce criminal policy into the criminal theory system. Make the essentials essential. Illegal value. Purpose of guilt. Formed a rational criminal theory system for its purpose. This article focuses on the question of how to unfold the relationship between criminal law doctrine and criminal policy in the context of China, and conducts a preliminary reflective inquiry. It is believed that China has not yet established a doctrine of criminal law. The Liszt gap is still enlightening. But we don't have to go back to Liszt. There is no need to cross the Liszt gap again. Instead, you can directly enjoy Roxin's success. This article highlights the current research on criminal law doctrine in China. It is necessary to use criminal policy as a guide to the teaching of criminal law. More attention should be paid to controlling the boundaries of criminal policy through the doctrine of criminal law.

Professor Lao Dongyan made the following judgment in his thesis in the recent study of criminal law in China. Chair Professor of Criminal Law and Xingfa Yanmei of Peking University Law School, the relationship between criminal policy is attracting increasing attention. For this judgment, I agree with previous research in China. Criminal law and criminal policy are studied separately as two disciplines. Therefore, there is a big gap and alienation between the doctrine of criminal law and criminal policy. Now, the relationship between criminal law and criminal policy has entered the field of theoretical research. Clarified the integration and interlinkage between the doctrine of criminal law and criminal policy, which is for the study of criminal law and criminal policy. It is the best of both worlds and each has its own place, and it is worth fully affirming the relationship between the doctrine of criminal law and criminal policy. This article traces to the German scholar Liszt. Describe the Liszt divide where criminal law doctrine and criminal policy are separated. It also elaborates German scholar Roxin's penetration of Liszt's divide. Both Liszt's divide and Roxin's penetration belong to the German question. This German asks how to unfold in the context of China and explore Chinese consciousness from it. This is the main concern of this article. ; Liszt divide so. How does the relationship between the doctrine of criminal law and criminal policy change? This change refers to the separation from doctrine of criminal law and criminal policy to mutual integration. I must mention the academic label proposed by the German scholar Professor Roxin when discussing Liszt ’s definition of the relationship between criminal law doctrine and criminal policy. The Liszt Divide German scholar Professor Roxin uses German 1 to 6; Describe Liszt's approach to distinguish between criminal law doctrine and criminal policy. Cai Guisheng will be 5, 15.1. 1 Kan word is translated visually into the Liszt gap. It is pointed out that the abbreviated translation here is the Liszt divide word, which is for Professor Daloxin's critical tendency towards this distinction, that is, this distinction has a tendency to separate the connection between criminal law and criminal policy. 2 Cai Guisheng ’s translation is a genius, vividly reaching the critical tendency of Professor Roxin ’s idea of ​​Liszt ’s relationship between the doctrine of criminal law and criminal policy. The German scholar Liszt is not only a famous criminal jurist . It is also an important advocate of criminal policy. When discussing the relationship between criminal law and criminal policy, Liszt proposed a life-and-death law that is still widely circulated to this day. The criminal policy is insurmountable. The tension between the criminal policy and Liszt means that the criminal law has the function of protecting the legal interest. This legal interest is a kind of life interest, and therefore also a public interest. The criminal law is to protect the legal interest by punishing the crime = and At the same time, Liszt also pointed out that personal freedom should not be sacrificed unprincipled in the public interest in a country ruled by law, only when the perpetrator's hostile thought emerges in the form of clearly stipulated actions. Penalties for perpetrators can be imposed. ;therefore. In Liszt's view. The realization of the criminal policy should be restricted by the legal principle of crime and punishment. Liszt understands the relationship between criminal law and criminal policy from an external perspective, and exposes the opposition between the two. Liszt's view on the relationship between criminal law and criminal policy provides a realistic legal basis for the relationship between criminal law doctrine and criminal policy 1 Lao Dongyan's criminal policy and the value judgment in the interpretation of criminal law also on the interpretation theory. Taking criminality crimes, phenomena, political law forum; 2 De Klaus. Roxin Criminal Policy and Criminal Law System, Second Edition, translated by Cai Guisheng, 2-year edition of Renmin University of China Press. Page 7. Translator's Note; De Liszt German Criminal Law Textbook Revised Translation 1. Xu Jiusheng translation. Law Publishing Du 91. Edition. The page can be said that Liszt ’s view on the meta-separation of the doctrine of criminal law and criminal policy is precisely the theoretical projection of the meta-discrimination of his criminal law and criminal policy Regardless of each other; this article does not intentionally distinguish between the above two lives, but only places it in special need. Based on this externalized understanding of the relationship between criminal law doctrine and criminal policy, Liszt ’s metaphysical nature is formed. Conception, 4 The elementary conception here refers to the separation of criminal law doctrines based on the legal principles of crime and punishment and criminal policies based on the necessity and purpose of punishing crimes. The classical criminal law system relies on legal security; on the other hand, it adopts a sanction system centered on the criminal. To achieve the highest degree of purpose, of course, Liszt ’s meta-structure on criminal law doctrine and criminal policy is not to emphasize the hostility between those who emphasize it, but based on the difference in their respective nature, the criminal law doctrine and criminal policy are given as much as possible. Alienated. despite this. Liszt still realized the external unity of criminal law doctrine and criminal policy within the framework of overall criminal law. To this. German scholars pointed out that in order to overcome professional studies 86531371.15.5. = Due to the different tasks and methods of various majors, there is no unified discipline in this field, but it promotes mutual understanding of various disciplines and professional cooperation below. I describe the criminal law doctrine and criminal policy in the perspective of Lister's overall criminal law. The classicist scholar Liszt is the founder of the classic criminal theory system, which is based on the classic criminal theory system. The rise of the doctrine of criminal law has brought modern criminal law into an epoch-making development stage. Regarding the doctrine of criminal law, Liszt once pointed out that the next task of criminal law is to rely on criminal legislation from the perspective of pure jurisprudence. Give a definition of crime and punishment, and specify the specific provisions of the criminal law. Every basic concept and principle of criminal law has developed into a perfect system as a highly practical science. In order to adapt to the needs of criminal justice and draw more nutrition from judicial practice, criminal law must form its own system. Because only by systematizing the knowledge in the system can we ensure a valid command. 7 Here, Liszt proposed the analysis method of pure jurisprudence. This is the method of legal doctrine, in addition. Liszt also emphasized the systematic and systematic knowledge of criminal law. The doctrine system of criminal law is thus established. It can be said that Liszt pointed out the development path of modern criminal law. Criminal law from politics. Freed from the entanglement of religion and ideology. Within the scope of forming a self-contained framework, the doctrine of criminal law should follow the analysis method of positivism, and this positivism excludes value judgment. ! See Roxin. Front note. Page 53, the author's postscript.

0 De Hans. Heinrich. Jessek Thomas. Translated by Xu Jiusheng from Weigent's German Criminal Law Textbook. Chinese Legal System, Banshe 6 Ibid., Page 53.

7 Liszt, supra note 3, page 3 The class's criminal theory system is its theoretical form, in the List's class criminal theory system. Every class embodies this positivist thinking. German scholars vividly described each class in Liszt ’s classical criminology system as an objective narrative constitutional element theory, an objective norm restriction, an illegality theory, and a subjective narrative guilt theory, which is also Liszt ’s The characteristic of the classical criminal theory system lies in the objective narrative constitutional element theory in the behavior-centered constitutional element class. Liszt advocated the theory of causal behavior and defined behavior as the intentional activity that caused external changes. Liszt pointed out the characteristics of the intentional activity and then the intention of the behavioral characteristics. Here only means that the will impulse world 155 can define it as the innervation of psychology 1. It can be understood as the process of psychology to determine its cause; thus, in Liszt, the activity of meaning It is a kind of psychology that must be possessed by any kind of behavior, so behavioral offenders with no results are unimaginable to Liszt; Liszt believes. Even if it is dangerous. It is a result in itself. This situation arises from the outside world for the result. It should be described using the principles of physics. As for the causality in criminal law. It is also an objective relationship between behavior and result in the judgment of causality, Liszt adopts the conditional theory. It is also called the theory of total condition and value; in Liszt ’s view, the causal relationship is purely objective and does not involve evaluation questions. Liszt pointed out that we should absolutely adhere to this view. The causal law only concerns the time and space before the event, not the In addition, the logical relationship of the concept or the ethical evaluation of the behavior of the society. We should also pay particular attention to the fact that causality involves a way of thinking. With this way of thinking, we link the actual situation without making any evaluation of the forces that lead to the event process; Liszt's above discussion on the results of behavior and its causality fully reflects the positivist thinking; this. Roxin commented that in all the normative components. Taking a causal approach can lead to a complete distortion of the objective content of the law. There is a very famous example in this respect, that is, the lawlessness of the crime of insult is understood as the time when sound waves are emitted. The sensory stimulus that caused hearing to the person involved can also be understood as a compliment because of this naturalistic phenomenon; and what is the law of insulting crime, and there is no illegality theory that explains the objective norms and restrictions here. Sexually. In the era of Liszt, there was a dispute between subjective violations and objective violations. Subjective violations interpreted the nature of the law as a legal order based on the command theory, and advocated that the command is only capable of understanding the meaning of the command . Front note 2. Page 6 describes the crime of insult based on the elements of the classical school. There is such a series of throat jitter. Bloodline is expensive. Those who cause unpleasant emotions in Others. For the crime of insult; the term of imprisonment below the year of imprisonment added negative content that caused unpleasant emotions. It doesn't seem to be understood that it is meaningful to praise others. Therefore, only the person who understands the meaning of the command, that is, the person with responsibility 1 can be deemed to have violated the law of the order and interpreted as illegal. On the contrary, the objective illegality theory advocates interpretation as the objective evaluation norms in law, and violations of the legal acts regarded as objective evaluation norms are illegal. Whether the actor has the ability to understand the meaning of legal norms, especially the ability to take responsibility, is not asked here. The so-called objective evaluation generally thinks that there should be two kinds of objectivity. That is, the objectivity of the illegal judgment and the objectivity of the judgment object. The fundamental difference between subjective illegality theory and objective illegality theory lies in how the relationship between illegality and responsibility is constructed. On the standpoint of the theory, declaring objectiveness means that the negative evaluation is not determined by the subjective ability of the actor. Liszt pointed out that the theory's inaccuracy stems from its arbitrary one-sidedness when it criticizes the subjective illegality theory. It ignores the dual function of law. That is, the law is not just an order. The command specification. and. Starting from the logical necessity, the law is also an evaluation norm. Only in this regard, the law appears in the face of abstract value standards, and its possibility of application does not depend at all on the manner in which the behavior of the person to be evaluated takes place. The objective lawlessness theory advocated by Liszt has clear normative standards and is more in line with the logic of positivism. The objective theory of illegality also laid the foundation for Liszt's classical criminal theory system. It is based on the fact that violations of the law are objective. Responsibility is based on the subjective life. On the basis of the theory of objective illegality. Liszt also proposed the categories of illegal form and illegal form. The illegal form here refers to the behavior that conforms to the constituent requirements. Its characteristic of formalism is not difficult to understand, and substantive violation of law refers to infringement or destruction of legal interests. Obviously this is a kind of substantive value judgment. Then. How Liszt adheres to the standards of formalism in the judgment of substance violations is simply incomprehensible.

We can look at Duan Liszt's assertion that the content of this illegal anti-social entity does not depend on the legislator's correct evaluation that the content is pre-law study. We must not speculate on this contradiction between the substance of the behavior and the positive legal evaluation of the behavior; but this contradiction has not been ruled out, it still exists if it exists, then. The judge is bound by the law; the current law is modified beyond its scope; 〃Liszt here expounds the relationship between formal violations and substantive violations. It can be seen that Liszt ’s substantive violations are not just for having Negative elimination function. Instead, it emphasizes when the constituent elements are established. The legislators set up illegal acts based on substantive violations of the law, and it is in this sense that Liszt will say. The concept of substantive illegality is pre-jurisprudential. It was not made but discovered. Liszt also talked about the contradiction between formal illegality and substantive illegality, that is, the state that has not been completely caused. This contradiction refers to the fact that the behavior is substantively illegal but has not been criminalized by the legislator. Liszt believes that this is based on the legal principle of crime and punishment. Judges shall not be criminalized by the law. So, whether there is an alternative form is admitted, but Liszt believes that this situation mainly refers to justification. Only statutory justifications are recognized, 13 participated in Yu Zhenhua's theory of criminal illegality, Hebei Yuanzhao Publishing House, 201 edition, page 7180 Liszt, note 3, page 19899

15 Liszt, supra note 3, page 201.

The ultra-legal violations were created afterwards by the neoclassical criminal theory system. ; Therefore, Liszt still adopted the form of judgment standards in the illegal class. When the German scholar Xu Naiman discussed the illegal concept in Liszt ’s positivism criminal theory system, he used the standard alienated ribs for 6 generations. Claw 0 batch 1 pair of words, think this is a flaw. So, how is this flaw fixed? According to Liszt's positivist conceptual law. It is illegal for the ruler to act in accordance with the facts and the law is the same. This behavior is inconsistent with the positive method. Determining the illegality in a case is illegal in principle. Only in order to determine the exceptional circumstances, it is necessary to thoroughly test the reasons for the violation of the law in the established law = therefore. In Liszt ’s subjective narrative guilt theory, guilt is the subjective basis for assigning an objective crime to the actor after illegal judgment; under the control of the classical school, where the law is objective and responsibility is subjective , The guilt theory of responsibility based on subjective psychology has achieved a dominant position, for example. The German scholar Professor Roxin once described the concept of psychological guilt based on naturalism. Pointing out the naturalistic ideas in the late 19th century, try to attribute all legal concepts to empirical facts that can be clearly understood in the natural sciences. And from this perspective, the concept of psychological guilt that was still dominant until the beginning of the century was developed from this perspective; according to this concept, guilt is understood as the subjective relationship between the actor and the result. Deliberate and negligent are regarded as culpable kind. Simultaneously. Most people regard the ability to blame as a condition of guilt or a condition of punishment. 17 Professor Roxin listed Liszt as a substitute for the concept of psychological guilt. Of course, Liszt was influenced by the concept of normative guilt in his later years. For example, Liszt described the development from the concept of psychological guilt to the concept of normative guilt. trend.

It is pointed out that the development of the concept of guilt has to depend on the concept and nature of the obligation to the inner world of everyone. Only in this way can the normative characteristics specific to guilt be understood; this point is clearly stated in the recent criminal law literature Recognized, and increasingly abandoning naturalistic and formalist guilt theory, if the guilt is explained only from specific psychological characteristics. Then the concept of guilt is more and more clearly recognized. Here, Liszt discusses the development of the concept of normative guilt. Although Liszt recognizes the necessity of normative elements in judging guilt, he still insists on psychological facts for judging guilt. Importance. Think that guilt is not a purely psychological fact. Nor is it a simple value judgment; it is more a defect between the psychological existence and value judgment based on the prerequisites of responsibility ability. Guilt refers to the accountability of illegal acts. 1; Introduction to De Nie Xu Naiman's Criminal Law System. Edited by Xu Yuxiu and Chen Zhihui; selected translations of Professor Xu Naiman ’s criminal law thesis, uncompromising devotion and justice, Hebei Chunfengxu Academic Fund 2, 6th edition, page 265 IS Liszt. Front note page 1; 2-heart C19 Liszt, front note 3, page 257.

From the above analysis of the elements of Liszt's criminal theory system, the criminal law doctrine knowledge system has formed a closed structure. This knowledge system of criminal law avoids judges' unauthorized decision in the process of conviction, and ensures the realization of the function of the general charter guaranteeing human rights in criminal law. In the context of the doctrine of criminal law. Liszt is a classical scholar. While constructing a criminal law doctrine centered on the classic criminal theory system, Liszt pioneered the criminal sociology with its criminal policy centered on individual prevention. Thoughts were also manifested on this basis, Liszt has established criminal policy thoughts for the purpose of special prevention. For example, the sentence of imprisonment in ancient China had a very strong criminal policy. However, the doctrine of criminal policy as a system is the product of modern times. It is generally believed that Feuerbach is the first advocate of criminal policy. Japanese scholar Masaki Masaki pointed out the term criminal policy, which began to be used in Germany at the end of the 18th century, but the term criminal policy now begins in Feuerbach. He applied psychology to positive philosophy. General criminal law and criminal policy as auxiliary knowledge of criminal law. Given the independent status of the criminal policy 21 Feuerbach ’s criminal policy is marked by psychological coercion, and advocates general prevention with the content of legal intimidation. For the subsequent development of the criminal policy theory has played a leading role. Feuerbach is a representative of the criminal classics school. The core of its criminal law theory is general prevention. Also known as passive general prevention, general prevention forms the cornerstone of Feuerbach's theory on the relationship between criminal law and criminal policy. To what extent in Feuerbach's theory criminal policy is independent of criminal law. This is a questionable question Feuerbach thinks. Criminal policy is the sum of the punishment measures by which the state fights crime. Feuerbach mainly regards criminal policy as a legislative policy. It emphasizes that the guiding role of criminal policy in criminal legislation is mainly reflected in the enactment of criminal law. Establish the crime price. Legal intimidation of nationals. Feuerbach ’s legal intimidation includes legislative intimidation and judicial intimidation, noting that the legal deterrence is stipulated by the law as an inevitable consequence of such behavior. In order to realize that the law stipulates that an illegal act should be given immediately, the lawful execution of the law should be given. The coordination of the enforcement power of deterrence and the legislative power has effectively become a psychological coercion. 1 It is worth noting that. Feuerbach is also an advocate of the statutory principle of crime and punishment, and the actual function of the statutory principle of crime and punishment is to exert its deterrent effect with the certainty of criminal law. Therefore, in Feuerbach, criminal policy and criminal law There is an external relationship. In a fixed sense, criminal law is a tool to realize criminal policy. Because of this, Feuerbach links criminal policy with definitive criminal law. It reveals the consistency of criminal law and criminal policy in pursuing the value goal, and forms the relationship between criminal law and criminal policy with its own characteristics. When evaluating Feuerbach ’s concept of criminal law and criminal policy, Roxin pointed out that since the Feuerbach era, the threatening prevention achieved through the principle of statutory crime and punishment is the basic principle of criminal policy; the motive function and guarantee function of the elements Out of 6 out of 1; coffee 0 is the same, quoted from the new edition of Yue Otani Criminal Policy Studies. Li Hong translated. 9th edition of Renmin University of China Press. Page 1 2.1 De Anselm. Ritter. Feng. Feuerbach's textbook on German criminal law. Tenth edition. Translated by Xu Jiusheng. China Founder Press 2, 10-year edition, page 28.

The concept 2 of the criminal policy, such as the two aspects of 0 Tun. , 1221 can be said. Feuerbach initially defined the relationship between criminal law and criminal policy. But there is no in-depth research on this. Liszt is also an important promoter of criminal policy, and his criminal policy ideas have had a wide influence in continental Europe.

However, Liszt's criminal policy thought is already quite different from that of Bilbao, and the position of the school of the Dentist's Dirty Punishment School. Explaining the content of criminal policy based on positivism There is a big difference between Liszt and Feuerbach ’s thoughts on criminal policy. Liszt ’s criminal policy thoughts can also be regarded as the development of Feuerbach. The development of Feuerbach ’s criminal policy thinking is reflected in the following aspects: from criminal policy centered on punishment to criminal policy for the purpose of pursuing more diverse crime resistance. In understanding criminal policy, Feuerbach It adopts a more narrow concept. That is, the criminal policy is directly connected with the criminal law, which is the only criminal policy means. And mainly regard criminal policy as a legislative policy. Although Feuerbach also emphasizes the role of justice and execution in realizing criminal policy, Feuerbach regards legal intimidation as the main objective of criminal policy. Psychological coercion is the fundamental means of legal intimidation, so legislative intimidation is the main form of psychological coercion, which has a guarantee function for the realization of criminal policy = Japanese scholars have pointed out that the German criminal jurist Feuerbach and others used criminal law around 18 years old. When the word policy is used, it mainly refers to criminal legislation policy and the concept now has a broader meaning, that is, criminal policy is a variety of measures taken by the state or social groups for the purpose of preventing and suppressing crime. 23 The main thing that gives criminal policy a broader meaning here is Liszt. Liszt divided the meaning of criminal policy into the following levels: criminal policy in the broadest sense. Criminal policy not only includes research on the causes of crime and the role of punishment. It also includes crime countermeasures and social countermeasures. It is a broad criminal policy. The entire system that includes both punishment and various systems similar to punishment, as well as various principles to combat crime, is a narrow criminal policy. Distinctly distinguish criminal policy from social policy, emphasizing that criminal policy is to fight crime through the influence of individual criminals first! It can be said. Liszt has greatly expanded the scope of criminal policy. Listest ’s best social policy is the best criminal policy.

Although it has certain rationality. Still criticized. Combining criminal policy with social policy Liszt is mainly to extend the main body of criminal policy from the state to society, and to extend the means of criminal policy from penalties to security penalties and other similar penal systems. Extend the function of criminal policy from threatening prevention to resistance prevention.

From the criminal policy centered on legal intimidation to the criminal policy centered on the correction of the offender This is very correct when it comes to criminal policies aimed at pursuing more diverse crime preventions. Among them, criminal policies centered on legal intimidation mainly refer to Feuerbach ’s doctrine and pursue more diverse crime preventions The purpose of the criminal policy refers to Liszt's theory, which has a very important position in the criminal's personal correction concept. It should be said that both Feuerbach and Liszt got rid of retributionism and advocated utilitarianism. however. Feuerbach advocates general prevention based on rule utilitarianism; Liszt advocates special prevention based on behavior utilitarianism.

C22 Roxin, supra note 2. Page 54.

On the 21st, Morimoto's translation of criminal policy studies such as Dai Bo. The 24-year edition of the Chinese People's Public Security University Press. Page 121 Strictly encourages the rationality of China's criminal policy; China University of Political Science and Law Press 2nd Edition. Page, 3lT Morimoto etc. Front Note 13. Page 1.

In fact, Liszt does not negate prevention. However, the emphasis on the function of punishment is now the diversity of punishment effects that can be obtained if the punishment is suitable for the destination. 1215 Of course, there are two aspects of general prevention and special prevention of punishment. Liszt is undoubtedly paying more attention to special prevention. When discussing the requirements of the current criminal policy and its impact on the latest legal development, he pointed out that the criminal policy first fights crime through the impact on the individual criminal. Speaking. Criminal policy requirements. Social defense, especially the punishment for the purpose of punishment should be suitable for the characteristics of the offender in terms of the type and degree of the punishment, so as to prevent it from continuing to commit criminal acts in the future. From this requirement, we can find a reliable standard for critical evaluation of existing laws. On the other hand, we can also find the starting point for the development of future legislative planning. 27 After a long period of time. The criminal policy thinking with correction as the core has always dominated criminal legislation and criminal justice in various countries from criminal policy attached to criminal law to criminal policy independent of criminal law. In the era of Feuerbach, criminal policy has been out. But it is not yet independent. It only depends on various ideas and concepts attached to criminal law; Feuerbach ’s criminal policy thought has obvious enlightenment and is the product of a rationalist criminal law concept; Baba, he initially used criminal policy language. It is believed that people are reasonably calculating the pain caused by punishment and the happiness generated by crime. Rational people who feel more painful will dispel the idea of ​​crime. The punishment should be through advance notice of suffering. The solution of intimidating people not to commit crimes is the so-called psychological coercion that they have all penal systems for preventing crime. Only when it is valid and necessary can it be considered legitimate.

Penalties that exceed the general prevention limit based on psychological coercion are unjust penalties. Put forward the punishment view of the utilitarianism of establishing rationalism. Advocating the elimination of unreasonable inhumane criminals as the basic case. Therefore, in Feuerbach, the only purpose of criminal policy is to improve the criminal law. And the criminal policy with intimidation as its core can only be realized by criminal law. It is in this sense that Feuerbach ’s criminal policy is reduced to the legislative policy. Lister has greatly expanded the scope of criminal policy. Incorporate all measures that will help fight crime into criminal policy systems. Indirect social policies related to crime prevention, such as housing policies, education policies, labor policies, unemployment policies, and other public protection policies, are included; in this case, criminal policy is not just about criminal law. Crime resistance, and yes. Or more importantly, the various measures related to crime prevention other than criminal law have spread and accepted with the broad concept of criminal policy advocated by Liszt, and criminal policy has become increasingly distant from criminal law. Gradually released from the shackles of criminal law. This objectively promotes criminal policy to be independent of criminal law to form disciplines of criminal law doctrine and the alienation of criminal policy. The formation of the Liszt divide was formed in Liszt. Criminal law as a normative science is a doctrine. It follows the logic law and refers to Liszt by the Criminal Law C26, supra note 3, page 8.a7i Liszt. Front note, page 15.

29 Participated in Xu Fusheng's Criminal Policy Science, China Democracy and Legal System Press, 2006 edition, pages 3., 982, defined as its boundary and criminal policy as a kind of empirical science, a kind of factology. What it implements is the original scientific shell. And the aim is to punish and prevent crimes; obviously, in Liszt's view. There are separate territories between criminal law doctrine and criminal policy, and they must not interfere with each other = As mentioned earlier, in Liszt, criminal law doctrine refers to criminalism. The criminal policy refers to the punishment theory. The separation of criminal law doctrine and criminal policy. It can also be said that the meta-split between the criminal theory system based on the legal principle of criminal punishment and the criminal theory based on purpose is also used in the above sense to use the concepts of criminal law doctrine and criminal policy. This is a continuation of the discourse in the meaning of Liszt; Liszt's treatment of the relationship between criminal law doctrine and criminal policy is largely influenced by Hume's concept of meta-discrimination of fact and value, It is believed that the doctrine of criminal law discusses the actual question of criminal law. Facts ask, criminal policy discusses what the criminal law should be. Question of value, therefore, the doctrine of criminal law is value-neutral. Criminal policy is related to value. The doctrine of criminal law is centered on justice. The statutory principle of crime and punishment is its highest criterion. As for the value content of the criminal law, it should be imported into the criminal law through legislation.

Criminal policy is centered on legislation. thus. Liszt separates the doctrine of criminal law from criminal policy to make them independent and function separately.

Roxin referred to Liszt's relationship between criminal law doctrine and criminal policy as the Liszt divide, and of course it was based on Liszt. The doctrine of criminal law and criminal policy are not incompatible. There is still a significant correlation between the two. For example, Liszt pointed out that when discussing the impact of criminal policy on the application of criminal law, criminal policy gives us standards for evaluating current laws. It clarifies to us the applicable law; it also teaches us to understand the current law from its purpose.

And the law is specifically applied in accordance with its purpose, so that the Liszt divide does not mean that Liszt has no connection with criminal law doctrine and criminal policy, but only that this kind of association is only an external relationship; Xin Guantong found that the Liszt divide was not the purpose of Roxin. Its purpose was to eliminate this divide. This is to make the gap between criminal law doctrine and criminal policy as mentioned above. The Liszt Gap refers to the definition of criminal law doctrine and criminal policy as a kind of extrinsic German scholar Prof. Naiman Xu, who commented on Roxin ’s purposeful and rational criminal theory system and pointed out that this criminal law system has been renormalized in the past two years. Has contributed to many more basic or more detailed studies, they try to transcend the concept of the criminal law system and the criminal policy as opposed to each other. I call it the concept of the gap, Shi, 2 knocks and the coherent derivation and the two concepts To replace the idea of ​​relationship structure, in other words, to develop a bridge-building concept, 1 soil and 1 person. 1 Shi, Gong's conception of the gulf here and the concept of bridging, very vividly describe the different positions of Liszt and Roxin on the relationship between criminal law doctrine and criminal policy. From Liszt ’s gap to Roxin ’s penetration, has Roxin done it, and how did it do it? 3, Liszt, pre-note 3, page 4.

31 De Xu, Man Criminal Law System and Criminal Policy, edited by Xu Yuxiu et al., Pre-note 16, p. 47.

Critical deconstruction of the Lister's divide Professor Roxin criticized the Lister's divide because it was based on List's ideas. Criminal law and criminal policy are two completely different academic fields, and they should be relatively isolated. The Liszt divide is the product of this criminal law doctrine and criminal policy metastructure. Considering that in the era of Liszt, criminal policy has not yet gained independent status. The entanglement of dogmatics and criminal policy is not conducive to the development of criminal policy. Therefore, it is of course reasonable to distinguish criminal policy from criminal law doctrine. This separation of criminal law doctrine and criminal policy also brings the following aspects to the system of criminal law doctrine and criminal policy. It is difficult to take into account the systemic characteristics of criminal law doctrine in individual cases.正是这种体系化的知识所形成的具有封闭性的结构，对于法官的偶然与专断具有限制性与约束性；因此，刑法教义学的体系性自有其优越性。对此，罗克辛也是充分肯定的，他甚至提出了体系是个法治国不可缺少的因素的命，21罗克辛曾经引述西班牙学者金贝尔纳特奥代格的话说明体系性思考的优点在刑法信条学设定了界限和规定了概念的情况下。它就可能使刑法在安全和可预的方式下得到运用。并能够避免非理性化。专横性和随意性叫仍15如1因此。体系性的刑法教义学知识对于实现罪刑法定主义来说是必不可少的保障。但是。体系性的知识体系存在着缺陷。甚至是危险，关于这种危险，德国学者称为非常抽象的程式化的刑法解释学3加如51他的危险，指出该危险存在于法官机械地信赖理论上的概念，从而忽视具体案件的特殊性，4因此。这里的危险是指个案公正的难以周全兼顾。因为在刑法教义学的体系内。更强调的是对于各种行为与行为人的平等对待在这种情况下，行为的特殊情境与行为人的特殊个性无法在法律评价中得到体现。因此，在将刑法教义学与刑事政策完全分离的状态之下，刑法教义学无法顾及个案情况而刑事政策则不能进入刑法体系刑法教义学的教条性与刑事政策的灵活性不能两全刑法教义学是以刑法条文为中心建立起来的知识体系，具有先天的教条性这种教条性不可避免地使其教义规则具有某种僵硬性而刑事政策是为抗制犯罪所设计的各种措施。具有对策性是更为灵活的应对举措=两者之间存在种紧张关系在刑法教义学与刑事政策分立的情况下。教义规则的教条性与刑事政策的灵活性各自存在=只有当刑事政策进入刑法体系，才能以刑事政策的灵活性对教义规则的教条性起到种补救的作用=罗克辛指出针对李斯特鸿沟5，161以所延伸出来的刑法教义学方法。还会导致另即若刑事政策的课不能够或不允许进入教义学的方法中。那么从体系中得出的正确结论虽然是明确和稳定的，但是却无法保证合乎事实的结果35之所以如此。主要是由刑法教义的僵硬性决定的。因而罗克辛提出了我们必须从刑事政策上主动放弃那些过于僵硬的规则这命罗克辛。前注7页132.；罗克辛。前注17页126.ii.耶赛克等。前注。 1.页2 35罗克辛，前注2，页7.

刑法教义学的逻辑性与刑事政策的价值性无法并存刑法教义学作为个知识体系。具有自身的逻辑结构。例如阶层的犯罪论体系就是如此。罗克辛指出自实证主义的开端以后。阶层体系就如个概念金字塔15.灯1叩0.有着林奈式6植物分类体系那样的形状通过阶层化的步步推进的抽象阶层直到内涵广泛的上位概念行为。人们从大量的犯罪特征中归纳出了这种构造，这样个阶层式的刑法教义学体系当然具有其优越性，就是以其严密的逻辑演绎推理在相当程度上保障了刑法教义的正确性。但是。刑法并不仅仅是逻辑现象，更是社会现象=对社会问需要进行价值判断，而这正是刑事政策的功能之所在。在李斯特鸿沟中，刑法教义学与刑事政策之间互相隔绝导致刑法体系中价值判断的缺失刑事政策进入刑法教义学体系在李斯特贝林的古典派的犯罪论体系之后，又先后出现过新古典派的犯罪论体系目的行为论的犯罪论体系罗克辛认为以上体系都未能妥善地解决刑法教义学与刑事政策的关系问。

新古典派犯罪论体系在刑法体系中引入所谓新康德哲学。而这哲学又称为价值哲学对于新古典派犯罪论体系将刑事政策应用到刑法教义学中，罗克辛是充满期待的。他同时指出了新古典派犯罪论体系对阶层的学术贡献在构成要件阶层按照被保护法益进行解释。在违法性阶层发展出超法规紧急避险等正当化事由和在罪责阶层提出了期待可能性思想等，但罗克辛批判新古典派犯罪论体系虽然试将刑事政策上的目标设定引入刑法教义学。但只是对体系从个体价值上进行瓦解，而没有揭作为超法规紧急避险或罪责阻却事由的期待不可能背后的目的理论并加以普遍认可的论证；7对于目的行为论犯罪论体系。罗克辛肯定了其试重新建立刑法教义学与现实之间的联系的努力，指出通过考察本体论的构造和社会现实。目的行为论试重新建立刑法教义学与现实之间的联系。从根本上看。这种努力也并非毫无结果，但罗克辛又认为我们前面提到的体系推导和直接价值评判之间的紧张关系。在目的主义那里，也还是没有得到消除。3在此，罗克辛所说的体系推导与价值评判之间的紧张关系，也就是刑法教义学的逻辑概念建构和推导与刑事政策的价值利益判断和衡量之间的对立关系。

罗克辛将自己创立的犯罪论体系，当然其更喜欢称之为刑法体系。标识为目的理性的犯罪论体系。应该说，罗克辛所谓目的理性的犯罪论体系中的目的与目的行为论的犯罪论体系中义上的目的而后者的目的是规范目的。目的的主体是刑法。因此这是种规范论意义上的目为论者的观点没有将行为本体的目的性与法规范的目的性区分开来，或者是偏重行为的目的而没有足够地强调刑法罚的目的对犯罪论体系的指引而并非真正的规范论体系这里目的目的理性的犯罪论体系的根本标志就是刑事政策进入刑法体系。罗克辛指出实现刑事政策和刑法之间的体系性统。在我看来，是犯罪论的任务，也同样是我们今天的法律体系的任务，1那么。在目的理性的犯罪论体系中，刑事政策是如何进入刑法教义学的昵，事实上，罗克辛仍然保持了古典派犯罪论体系的阶层构造。只是对阶层的内容都进行了刑事政策前提。利益对立场合时社会进行调节的利益衡量和对于刑法之目的的探求。就是我们所常的各个犯罪类型的刑事政策之基础。41也就是说，犯罪论体系的阶层分别应该以罪刑法定原则利益衡量原则和刑法目的原则作为其刑事政策的基础，1.构成要件的实质化在阶层的犯罪论体系中。古典派犯罪论体系最受人诟病的就是形式化的构成要件根据古典派学者的观点，构成要件的记述性中立性都是排斥了价值判断的。而这又被认为是罪刑法定主义的基本要求，罗克辛则认为构成要件具有体系性。刑事政策性和信条性这个功能。罗克辛在论述构成要件的刑事政策性功能时指出这方面的意义存在于德国刑法典第10；条第2款要求的保障功能之中。刑法只有在行为构成中准确地规定了所禁止的举止行为时。才能对法无明文规定不为罪这个基本原理作出完整的正确的说明，如果人们说。我们的刑法是行为构成的刑法而不是态度的刑法。或者说它主要是行为刑法而不是行为人刑法，那么。在使用这些关键词进行述的背后，总是有着行为构成的刑事政策意义的基础。

罗克辛将刑事政策意义上的构成要件称为保障性的构成要件。并认为罪刑法定原则是构成要件的刑事政策基础。那么。如何理解罗克辛将罪刑法定原则作为构成要件的刑事政策基础这命昵，我认为。这里涉及罗克辛和李斯特所确立的刑法与刑事政策的关系究竟存在何种区分的问。在我看来。可以作出这样的区别李斯特是将罪刑法定原则置于构成要件之外，作为抵御刑事政策侵入的边界。归根结底。李斯特还是把罪刑法定原则与刑事政策对立起来因此。李斯特在罪刑法定原则的理解上更注重通过其形式性特征限制司法权的滥用而罗克辛则将罪刑法定原则与刑事政策统起来，认为罪刑法定原则所具有的保障功能本身就是刑事政策所要求的=因此，在刑事政策机能之视角下。罪刑法定原则不仅具有将法无明文规定的行为排除在构成要件之外的功能。而且应该根据罪刑法定原则所具有的保障功能对构成；i方泉犯罪论体系的演变自科学技术世纪至风险技术社会的种叙述和解读。中国人民公安大学出版杜21.。年版。页1 10罗克辛，前注2，页16.。4罗克辛，前注页2，42罗克辛，前注17，页181.

要件进行实体审查，将那些没有处罚必要性的行为排除在构成要件之外。罗克辛指出从罪刑法定原则的角度来看。其相反的做法反而是正确的也就是说。落实刑法之大宪章机能和刑法之不完整性柳比1犯1如虹的限制性解释。基于保护法益的思想。只能抽象地限制在不可放弃的可罚性领域为了达到这个目的，就需要些调节性以山10的规则，比如韦尔策尔所引入的社会相当性，这个社会相当性并不是构成要件要素。而更似乎是在针对包含了社会容忍的举止方式的各种字词含义进行限制时。为了解释的方便而得出的东西。进步地。还有所谓的轻微性原则，6冲职吐15叩叫，亦即在大多数构成要件中。是可以开始就排除那些轻微的损害的，而被排除的这些轻微损害也属于社会容忍的内容1这样，罪刑法定原则就具有了实质性的积极功能。这就是罗克辛所说的罪刑法定原则所具有的指导人们举止的目标。在这个意义上，罗克辛认为，罪刑法定原则就成为变革社会的工具而且是具有重要意义的工具人，显然这与李斯特对罪刑法定原则之功能的消极理解是完全不同的。罗克辛主要是强调了罪刑法定原则的实质侧面，并且为构成要件的实质化堤供了正当性的根据。根据以上考察。我们可以看到罗克辛在定程度上恢复了费尔巴哈的罪刑法定思想。因为费尔巴哈主要是从般预防角度论证罪刑法定原则的正当性。刑法的合理性不仅来自于惩罚的必要性，而且来自于预防的必要性。这里的预防，就是指费尔巴哈所主张的心理强制，费尔巴哈指出刑法的必要性的根据以及刑罚存在的根据既包括法律中规定的刑罚，也包括刑罚的运用本身。是维护所有人彼此之间的自由的必要。其途径是消除人们内心的违法动机。45因此。在费尔巴哈那里，罪刑法定本身就具有般预防的功能及至李斯特开始注重特殊预防，罪刑法定的般预防功能被忽视，而其人权保障功能备受重视，罗克辛则在注重罪刑法定的人权保障功能的同时，也强调罪刑法定的般预防功能由此，刑法目的与罪刑法定获得了致性，并在构成要件阶层得以体现。

在构成要件的实质化中。罗克辛的正犯理论，尤其是义务犯理论。具有不容忽视的重大意义；正犯虽然与共犯相对应。但它更涉及对构成要件行为的理解在实证主义的观念指导下。

古典派犯罪论体系所主张的物理性的行为概念使得对不作为的解释显得捉襟肘。更不用说对忘却犯。简直就是无能为力目的行为论的犯罪论体系虽然添加了行为的目的性这要素，使得行为概念的内容更为丰富但对于过失犯的行为性，目的行为论的犯罪论体系仍然束手无策。罗克辛在刑事政策观念的指引下，将构成要件行为与法益损害之间的关系分为支配关系与义务关系。由此引申出支配犯与义务犯这对范畴支配犯的本质是对犯罪行为的因果流程的支配，这种支配既可以是行为支配出仙1.1如。即以直接实施构成要件行为要件行为，但利用自己的意志力量支配了犯罪的因果流程还可以是机能支配。即行为人通过。 ! ；罗克辛。前注。 2.页；1.4！参罗克辛。前注页2，45费尔巴哈，前注2页29.。 987.

和其他犯罪人的分工合作。机能性地支配了犯罪，因而拥有机能的犯罪支配止0心3.；1应该说，罗克辛的支配犯尚可在传统的行为论中加以理解那么。义务犯则具有强烈的价值论色彩，在很大程度上超越了传统的行为论；罗克辛指出还存在着这样履行的义务的人；我称之为义务犯罪，7义务犯的行为不像支配犯那样，是通过实在的外在举止的方式所能够把握的；而是通过违反构成要件特别规定的特定义务而加以描述的。在论及义务犯的特定义务时，罗克辛指出在义务犯中。构成要件所保护的是那些生活领域的功效，1也15她1成1.而这些生活领域是人们在法律上精心构建过如沈1以政的。 ! 81随着义务犯理论的建构。构成要件的行为极大地超越了存在论的疆域，越来越具有规范论的性质，这也被认为是罗克辛目的理性的犯罪论体系的特色之。

在构成要件的实质化中，罗克辛所做的最为重要的贡献还在于堤出了客观归责理论。客观归责是在形式地具备构成要件之后。再进步对符合构成要件的行为进行实质审查客观归责的基本原理是法秩序必须禁止人们创造对于受刑法保护的法益而言不被容许的风险。

而且，如果行为人在某个侵害法益的结果中实现了这种风险。那么实现这种风险就要作为种符合构成要件的行为归属到该行为人身上工客观归责理论所要解决的是在什么样的前提条件下将结果归责于行为人所实施的行为，这个问。在古典派的犯罪论体系中。是通过因果关系理论来解决的。将其视为个事实上的归因问，此后。目的行为论的犯罪论体系强调了葸志的归责，1山血1听18.。而罗克辛则在规范的归责。1曹1拉代。21.，吨的基础上形成了客观归责理论完成了从存在论的归因到规范论的归责的转变旧随着客观归责理论的创立，构成要件的实质判断得以强化，在这种情况下，构成要件从存在论走向价值论或者规范论，刑事政策所具有的目的性的观念在构成要件中得以贯彻。而客观归责只不过是其中的个篇章。

2.违法性的价值化在阶层的犯罪论体系中，违法性主要是对符合构成要件的行为进行实质审查；但在李斯特的古典派的犯罪论体系中，违法性虽然可以分为形式违法性与实质违法性，构成要件是形由的判断凡是存在正当化事由的。则否定实质违法性的存在；只有在否定正当化事由的情况下。才肯定实质违法性的存在。因此，违法性的有无取决于正当化事由是否存在。无须单独进行判断而且。否定实质违法性的存在，也不能否定形式违法性，这是基于阶层递进式逻辑C！U参何庆仁义务犯研究，中国人民大学出版社，年版，页，5，关于德国客观归责理论的形成，参吴玉梅。德国刑法中的客观归责研究中国人民公安大学出版社2007年版。

律规定认定正当化事由，只是在新古典派犯罪论体系中。才真正引入实质违法性的判断。使违法性阶层发挥实质审查功能对此，德国学者许乃曼在论及新古典派犯罪论体系对违法性阶层的贡献时指出在贝林李斯特的体系里，违法性原来是个纯粹形式的完全由立法者以权威命令充实内涵的范畴在此透过实质的违法性理论即发生了个大转变无论如何，在实质的违法性被定义为侵害社会的行为，并且对于阻却违法发展出目的手段相当原则或利多于害原则等调节公式之后，人们才可能开始对无数被立法者所忽视或未予解决的违法性的问。籍由体系处理寻求解决的方法夂罗克辛则进步将违法性要件所要承担的作用，从构成要件中排除不具有实质违法性的行为的消极功能转化为解决社会冲突的积极功能罗克辛指出在违法性层面。人们探讨的是相对抗的个体利益或社会整体利益与个体需求之间产生冲突时。应该如何进行社会纠纷的处理。，也就是在般人格权，1.165 66，14，1与公民行为自由之间有矛盾时，是否有必要进行公权力的千预。以求得矛盾的消除。以及在现实的难以预的紧急状态的情况下，是否要求作出进行干，实现正确的管理在此，罗克辛堤出了个与违法性的本质相关的重要概念，这就是千预权=这里的千预权是指法律，确切地说，是刑法对于个人行为的干预权如果干预，则意味着某种行为应当作为犯罪处理；如果不予干预，则该行为可以不作为犯罪处理，而是否干预，就直接决定了犯罪的范围与特征，例如，对于安乐死是否构成故意杀人罪的问。就涉及到法律是否赋予公民个人以尊严死的权利这较为敏感的问。在正当化事由中。除了刑法明文规定的正当防卫紧急避险等法定事由以外，还存在着大量的超法规的正当化事由。对于这些超法规的正当化事由整体法秩序，也是刑法中最为活跃的内容。通过正当化事由的范围调节。刑法能够及时与灵活地反映杜会现实；这对于刑法来说。可以在对杜会作出有效反应的同时。又能够保持刑法的稳定性正如罗克辛指出由于千预权是源自整个法的领域的，而且正如超法规紧急避险的例子所现的那样其是可以从实在法的般原则推导出来的，也并不需要用刑法法条来固定化，因此，不受罪刑法定原则影响的其他法领域的发展变化可以在正当化事由方面直接影响到案件是否可罚。而并不需要刑法作出同步修改。5在这种情况下。违法性就成为种否定性的价值判断，它以干预权为依归。由此而充分发挥了违法性的出罪功能，1德许遒曼刑法体系思想导论。载许玉秀等编。前注1页2717.

52罗克辛，前注2，页21.

53罗克辛，前注2，页39 3罪责的目的化如前所述，李斯特的古典派犯罪论体系在罪责上所持的是心理性的罪责概念。此后新古典派犯罪论体系发展出了规范性的罪责概念，在罪责概念中引入了价值评价，目的行为论的犯罪论体系则进步对规范性罪责概念进行了修正。将故意过失这些单纯的心理性内容从罪责概念中抽掉。将之归入构成要件。在罪责概念中保留下来的仅仅是可谴责的标准。可以说。从心理性的罪责概念到规范性的罪责概念。罪责要件已经在很大程度上完成了从存在论的罪责观到价值论的罪责观的转变；但罗克辛认为，上述规范性罪责概念仍然是种形式性的罪责概念。指出规范性罪责概念仅仅是说。种有罪责的举止行为必须是可谴责的但是，这个概念仅仅具有形式上的性质，而还没有回答这个问这种可谴责性应当取决于哪些内容上的条件。这是个关于实质性罪责概念的问在此。罗克辛提出了实质性罪责概念的命。那么，实质性罪责概念到底包含哪些要素昵，罗克辛认为。罪责主要是回答构成要件该当违法的行为具备什么条件才配得上动用刑罚的问。罗克辛指出刑罚同时取决于两个因素。其是。用刑罚进行预防的必要性；其是，犯罪人罪责及其大小，如果人们赞同我的观点，那么。也就意味着。刑罚受到了双重的限制，刑罚之严厉性不得超过罪责的严重性。同时。也不能在没有预防之必要性的情况下科处刑罚，这也就是说，如果有利于对犯罪人实行再社会化的话，那么。是可以科处比罪责之严重程度更为轻缓的刑罚的；如果没有预防必要的话。甚至可以完全不科处刑罚，因此。在实质性的罪责中，包含了两个要素。这就是规范性要素与预防必要性；并且，在这两者之间存在着逻辑上的位阶关系规范性要素在前，预防必要性在后；后者以前者为前堤罗克辛还提出了答责性1作为上述两个概念的上位概念规范性要素解决能为答责性提供充分条件夂对于罗克辛实质性罪责概念中的规范性要素，不必着墨过多。因为并无特别之处这里重点需要讨论的是预防必要性罗克辛的预防必要性是从刑罚目的中引申出来的，这里的刑罚目的就是预防犯罪，罗克辛是报应主义的坚定反对者。因为报应主义使刑罚完全脱离了社会，没有考虑刑罚处罚的社会必要性，而基于刑事政策之机能的视角。在刑罚目的上只能选择预防主义。罗克辛指出由于刑法是种社会治理5，1.8此。和社会控制的机制。它也就只能谋求社会目标。57这里的刑法的社会目标就是指预防犯罪，这也是刑事政策的目标；预防犯罪有般预防与特殊预防之分在以往德国学者中。费尔巴哈主张般预防，李斯特则转向特殊预防但是。无论是费尔巴哈还是李斯特都没有将犯罪预防的观念引入罪责之56参李文健罪责概念之研究非难的实质基础，台湾容股份有限公司1998年版，页222以下。

中。在将预防观念引入罪责概念的理论中。其中有两种理论第种是作为必须为自身个性负责的罪责，这罪责概念具有明显的人格责任论的性质。将罪责标记成为这种人格必须承担责任卫出的4，防沈，因此，特殊预防成为刑罚必要性的考量因素。第种是作为根据般预防需要归咎的罪责。这是德国学者雅科布斯所主张的。这种理论将罪责理解为种般预防性的归咎以仍士山⑴增般预防成为刑罚必要性的考量因素，对于这两种关于刑罚必要性的罪责理论。罗克辛都是反对的，罗克辛在刑罚目的问上是个双重预防论者，指出刑罚还要有特殊预防和般预防的目标，通过刑罚的安排。必须实现让被处罚者尽量不为再犯的目标；我们的刑事执行最好能够努力促进犯罪人在刑法上的重新塑造，促进他的再社会化。以此来让他不为再犯。同时，刑罚也要对公众产生作用，具体也就是。刑罚要能促进人民的法律意识，并且让他们注意到可罚举止的后果3因此，在罗克辛的预防性的罪责概念中。既包括了特殊预防，又包括了般预防。罗克辛称为作为不顾规范可交谈性的不法行为的罪责刑法教义学与刑事政策的体化罗克辛贯通的径路罗克辛将李斯特关于刑法教义学与刑事政策的关系描述为李斯特鸿沟，这当然具有贬义，反映了在这个问上罗克辛的倾向性立场。即要打通刑法教义学与刑事政策之间的关系罗克辛明确地将其刑法教义学称为以刑事政策为导向的刑法学。指出建立这个刑法体系的主导性目的设定。只能是刑事政策性的。刑事可罚性的条件自然必须是以刑法的目的为导向。罗克辛将刑事政策贯彻到构成要件违法性和罪责这个阶层之中。成为其目的理性罗克辛将刑事政策贯穿于整个刑法教义学，是否会发生李斯特所担忧的刑事政策对刑法定这两者始终处于种复杂的牵制关系之中，事实上，罗克辛不仅将刑事政策贯穿于构成要件。违法性和罪责这个阶层，而且也把罪刑法定主义同时贯穿于这个阶层。

第，构成要件与罪刑法定在构成要件阶层，罪刑法定原则主要体现为明确性的要求然而。这种明确性并非绝对，需要进行价值的填充。这种填充在很大程度上受到刑事政策的指导。罗克辛在论及构成要件对行为的描述时就认为，如果人们想通过行为的描述来满足罪刑法定原则的要求，那么就会产生个无法解决的矛盾人们要怎样才能够用精确的行为描述㈦，乩山⑴碟来处理没有立在实证主义基础之上的行为论是无能为力的，只有采用刑事政策的方法。才能进行合理的价值建构。罗克辛认为。正确的做法本该是在行为犯的场合。只有在该行为犯之构成要件包59罗克辛，前注2，页7677.

60罗克辛，前注17，页133.

含义务犯的情况下。才可以允许不作为取得与积极作为同等的地位，051因此。在构成要件上，罗克辛通过义务犯之义务关系填补了空隙。因为，从罪刑法定原则的角度来讲。这个对义务的违反是通过作为还是不作为的方式来实现。并不重要=在罗克辛看来。立法者对构成要件只能作出较为粗疏的规定，这是种框架式的规定。这是种罗克辛称为粗略描绘的现行法的形象只有依靠刑事政策在切细节上进行设想和加工由此罗克辛在构成要件的解释上将刑法教义与刑事政策统起来。

第，违法性与罪刑法定在违法性阶层，罗克辛将干涉权视为核心概念。认为其并不违反罪刑法定原则。因为其限制了司法权的定罪范围罪刑法定原则在正当化领域也有其功能。例如正当防卫类型的教义学体系化处理方法本身就受到立法的限制。至于超法规的正当化事由。也并不能认为是违反罪刑法定原则的=因为罪刑法定原则只限制入罪。但并不限制出罪而且。对于正当化事由，无论是法定的正当化事由还是超法规的正当化事由予以出罪，也并不与罪刑法定的般预防精神相抵触因为，正当化事由不仅没有刑罚必要性，也没有预防必要性，第。罪责与罪刑法定在罪责阶层，刑事政策主要体现在引入了预防必要性的概念。但这是在具有心理性要素和规范性要素的基础上。进步要求具备预防必要性才能动用刑罚。因此预防必要性起到的是限制刑罚发动的作用，而不是扩张刑罚范围，在论及罪责方案的设计时，罗克辛指出除此之外。还要提下罪刑法定原则这是个同时也适用于罪责要素和被用于确定可罚的范围的原则。同样，该原则也必须适用于我

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