大陆法系刑法中的“客观的处罚条件”

摘要

The objective condition of punishment is the reason for containing punishment which is widespread in criminal law of Continental Law System. It means that a person would not be punished before the certain objective condition which is stipulated by criminal law appears since his behavior has constituted a crime. Although there is not any explicit provision about the objective condition of punishment in German criminal code, the criminal law theorists in Germany recognize it commonly. Italian criminal code has explicit provision about the objective condition of punishment in its General Provisions, and in Specific Provisions many crimes involve it. There is also not any explicit provision about it in Taiwan’s“Criminal Code”, but most Taiwan scholars take it as the fourth special element of crime in special circumstances.%“客观的处罚条件”是大陆法系刑法中普遍存在的限制刑罚发动的事由。它是指行为构成犯罪后，法律规定必须出现一定客观状况才对行为人施加刑罚的情况。德国刑法虽然没有明文予以规定，但理论界的共识是承认的。意大利刑法对此在总则中做了明确规定，在分则中也有相当罪名涉及。中国台湾地区“刑法”虽然也没有明确规定客观处罚条件，但多数学者认为其是特殊情况下的第四种犯罪成立要素。