費爾巴哈之故意理論及其影響—— 以德國刑法為核心

Abstract

以心理現象判斷刑法上的故意概念，其看似人人皆知易於說理，且與日常生活上的用語相吻合，取得了學說與實務上的主流地位，但是，若要進一步推敲行為人的心理狀態時，卻會在行為人複雜迷濛的情緒叢林中失去方向，而在故意的意欲要素判定上，存在著歧義的檢驗標準。因此，綜上所述，面對這個費爾巴哈的遺產，仍有待我們進一步予以徹底的清理與重整。

As a prominent criminal law scholar, Paul Johann Anselm von Feuerbach (1775-1833) developed a systematic theory of criminal law, which, under the influence of the Siècle des Lumières, which consisted of theories of crime and punishment and created the well-known prin-ciple of “nulla poena sine lege”. In retrospect with regard to the history of German criminal law, Feuerbach’s influence was revolution¬ary in the sense that he developed the concepts of “intention” and “negli-gence” and thereby set the basis for the contemporary theory of inten-tion in German criminal law. Feuerbach’s theory of subjective imputation in criminal law is characteristic of its connection with psychology. It rejected the idea that subjective imputation in criminal law should be based on “free will” as emphasized by ethics and argued that “intention” and “negligence” must be determined on the basis of the individual psychological phenomenon and thereby must be distinguished according to the judgment whether a criminal behavior results from the criminal purpose. Afterwards, the research achievements in psychology have been more closely combined with behavioral theory and the principles of criminal liability in German criminal law. Viewed this way, Feuerbach’s theory undoubtedly led to the enormous impact of psychology on the determination of intention in criminal law. While this orientation towards psychology seems to be plausible and thereby occupies the leading position in theory and practice, it tends to confuse the practical judgment on the determination of intention because the psychological dimension of criminals is hard to investigate and to ascertain. Therefore, Feuerbach’s legacy needs not only to be cherished; it is also worth exploring how Feuerbach’s theory is to be clarified and even modified in light of contemporary German criminal law.