刑事违法观与犯罪构成关系论

按照主观违法论而加以建构的传统犯罪构成理论有别于按客观违法论建构的大陆法系犯罪论体系,两者有着不同的研究进路和研究方法。主观违法论强调有责之违法,行为人的主观罪过、客观的危害行为、刑事责任能力都是违法的构成要素,这种因人而异的违法观不能很好地为司法实践提供理论根据。从主观违法论立场出发,我们不可能从构成要件其中一个方面单独地判断违法性是否存在,传统犯罪构成理论将犯罪构成要件定位于反映行为社会危害性的事实特征,因此,犯罪构成只反映定罪结论,不反映定罪过程。

The Relationship between Notion of Criminal Illegality and Theory of Criminal Constitution

The traditional theory of criminal constitution, based on the theory of subjective illegality, is different from the theory of crime in the continental law system, based on the theory of objective illegality, since both of them have the different approach and method. The theory of subjective illegality emphasizes that accountable crime, offender’s subjective wrong deed, objective detrimental conduct, and capability to take criminal responsibility are all the constitutive elements of illegality. Varying with each individual, this kind of illegality notion cannot supply theoretical grounds for the judicial practice. From the perspective of subjective illegality, it is impossible to judge whether the illegality exists on the basis of one of these four constitutive elements of illegality. Since the traditional theory of criminal constitution locates its constitutive elements of illegality on the basis of the social damage of the crime, it just reflects the result of conviction but not the process of it.