刑法第13条但书条文中“情节显著轻微”与人身危险性关系的阐释

Interpretation of the Relationship between “Obviously Minor Circumstances” in the Proviso of Article 13 of the Criminal Law and Personal Dangerousness

摘要: 人身危险性理论于我国刑法理论而言属于舶来品，目前通说认为人身危险性是指再犯可能性。我国《刑法》第13条但书条文具有出罪功能，刑法学界对此观点已无异议，但对但书的理解一直存在争议。通过梳理人身危险性的概念及表征，对但书条文中“情节”进行界定，认为刑法理论中“情节”与人身危险性之间在概念外延上存在交叉关系，“情节”能够反映行为人的人身危险，但书条文中“情节显著轻微”内含人身危险性低之意。

Abstract: The theory of personal dangerousness is an imported concept within the theoretical framework of China’s criminal law. The prevailing view currently holds that personal dangerousness refers to the possibility of recidivism. The proviso in Article 13 of China’s Criminal Law possesses the function of decriminalization (or exclusion of criminal liability), a point on which there is no longer dissent within the field of criminal law scholarship. However, interpretations of the proviso itself have consistently been subject to debate. By examining the concept and indicators of personal dangerousness and defining the term “circumstances” within the proviso, this paper argues that within criminal law theory, there exists an overlapping relationship in the conceptual extension between “circumstances” and personal dangerousness. “Circumstances” can reflect the perpetrator’s personal dangerousness, and the phrase “where the circumstances are obviously minor” in the proviso inherently implies a low degree of personal dangerousness.