| 摘要: |
| 持有犯之持有性,在刑法理论上围绕“作为说”、“不作为说”、“作为与不作为择一说”及“第三种行为形式说”,存在很大争议;并由此直接导致在对持有犯之责任追究上,呈现出“严格责任或然说”、“推定罪过或然说”等理论的对立。这不仅在理论上造成不必要的无谓的论争,更给实践带来一定的困扰。事实上,持有只是刑法评价前的一种“裸”的状态。基于这种重新定位,除对持有犯之追责原则需得反思,并应坚持结合持有犯的特殊性对罪过说予以修正外,经典命题“过失不能成立持有犯”也是欠缺正当性依据的。 |
| 关键词: 持有犯 持有性 新的“择一说” 过失持有 修正的罪过说 |
| DOI： |
| 分类号:D924 |
| 基金项目: |
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| On the Possession Action About the Crime of Possession:An Advocate of the Correction Theory of the Responsibility of Guilty |
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MA Tao
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(Criminal Justice School of Law, China University of Political Science and Law, Beijing 100088, China)
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| Abstract: |
| In the criminal law theories, according to different opinions about the characters of the possession for the crime of possession, there is a great controversy, such as the theories of active conduct, negative conduct, the old alternative one and the third pattern of conduct. What 's more, it influences the principles of the responsibility directly, thus, there is an inverse between the strict liability theory of probability and the presumption theory of probability. However, these theoretical arguments are not only meaningless, but also bringing the confusions to the judicial practice. In fact, the essence of the possession action is just some fact status which hasn 't been commented by the Criminal Law, thus under the view, we need to rethink the responsibility principles of crime of possession critically, and insist the correction theory of the responsibility of guilty. In addition, the classical proposition that negligence cannot constitute the crime of possession is also not right. |
| Key words: the crime of possession the characters of possession the new alternative theory the negligent possession the correction theory of the responsibility of guilty |
