论文部分内容阅读
被胁迫作为阻却犯罪成立事由的法律性质在两大法系刑法理论中都有争议。在大陆法系国家,针对其与紧急避险之间存在等同或区分的关系,其法律性质可相应划分为三种类型:为排他型违法阻却事由、排他型责任阻却事由与违法与责任阻却二元化事由。在英美法系国家刑法理论中,被胁迫法律性质一方面传统上被认为属于可宽恕性抗辩事由,而另一方面新的见解既有将其视为正当化抗辩事由,亦有学者认为其属于独立抗辩事由以及特殊标准的可宽恕事由。通过比较分析两大法系关于被胁迫法律性质的上述争议,认为在两大法系中,作为排他性的理论具有绝对化和地方性的弊端,从而应当确立二元化的法律性质理论。
The legal nature of coercion as a deterrent to the establishment of a crime is controversial in both the criminal law theory of the two legal systems. In civil law countries, there are three types of legal nature for the relationship between them and emergency avoidance: the act of exclusion of exclusion, the objection of exclusion responsibility and the obstruction of law and responsibility Yuanhua cause. In Anglo-American legal system criminal law theory, the legal nature of being coerced has traditionally been regarded as a source of excuse for apologetics; on the other hand, new insights have both regarded it as a justification of defenses and some scholars regard them as Independent pleadings and special standards of forgiveness. Through comparative analysis of the above two controversies over the legal nature of the coerced law in the two legal systems, it is considered that in the two legal systems, the exclusive theory has the disadvantages of absoluteness and locality, and therefore a dual legal theory of nature should be established.