行为无价值论与主观违法要素

发布时间：2018-12-26 14:11

【摘要】：在犯罪成立之际,是否在对行为及其结果进行评价的同时,也应将判断重点放在行为的故意、动机与目的等主观要素上,这一直被认为是行为无价值论和结果无价值论的关键对立点之一。有的结果无价值论者全面否定主观违法要素,但其恰好不能有效保护法益;有的结果无价值论者例外地承认主观违法要素,但其必然陷入方法论上的困境。行为无价值论承认主观违法要素,主张排除主观违法要素会导致构成要件无限定,不能向国民明示处罚范围,也无法准确认定犯罪;故意犯的违法性程度明显高于过失犯;刑法中规定的目的犯是主观要素影响违法性的具体表现;中国司法实务中大量案件的处理也特别考虑了主观违法要素。从行为无价值二元论的逻辑出发,应该认为犯罪是违反行为规范,进而造成法益侵害的行为。对刑法所禁止的行为,要求行为人有故意或目的,主观要素影响违法。承认主观违法要素,就可以很好解决假想防卫中的"回旋飞碟现象";同时,要使违法概念和正当防卫中的不法侵害概念保持一致。
[Abstract]:At the time of the establishment of the crime, whether to evaluate the behavior and its results should also focus on the subjective elements such as intention, motive and purpose of the act. This has always been regarded as one of the key opposites between behavioral and resultant axiology. Some of them deny the subjective illegal elements completely, but they just can't protect the benefits effectively. Some of them admit the subjective illegal elements without exception, but they are bound to fall into a methodological dilemma. The theory of behavior without value admits the subjective illegal elements, and claims that excluding subjective illegal elements will lead to the indefinite determination of the constitutive elements, which can not express the scope of punishment to the national, nor can accurately identify the crime; the degree of illegality of intentional crime is obviously higher than that of negligent crime; The purpose crime stipulated in the criminal law is the concrete manifestation of the subjective factor influencing the illegality, and the handling of a large number of cases in the judicial practice in China also takes into account the subjective illegal elements. From the logic of dualism, crime should be regarded as an act that violates the norms of behavior and causes the infringement of legal interests. The behavior prohibited by the criminal law requires the perpetrator to have intention or purpose, and subjective factors influence the violation of law. By acknowledging the subjective illegal elements, we can solve the "gyrotron flying saucer" phenomenon in the hypothetical defense, and at the same time, we should keep the concept of illegal violation consistent with the concept of unlawful aggression in legitimate defense.
【作者单位】：清华大学法学院;
【分类号】：D914

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