超法规违法阻却事由理论研究

发布时间：2019-04-01 15:51

【摘要】：本文从超法规违法阻却事由的基本理论的梳理入手，首先介绍了学界对于超法规违法阻却事由的称谓，并对称谓与概念之间的关系进行了简单的分析，紧接着介绍了关于超法规违法阻却事由概念的几种观点及其背后的理论，并试图从最贴近中国实际又最符合刑法发展方向的角度对超法规违法阻却事由的概念进行界定。在概念界定之后，本文对目前学界关于超法规违法阻却事由与犯罪构成的关系的几种主要的观点分别进行了介绍并作简单评析，在此基础上提出了应当将我国的四要件犯罪构成体系进行改造并将超法规违法阻却事由纳入其中的观点。由于超法规违法阻却事由的“超法规性”，自然逃脱不了破坏罪刑法定原则的嫌疑，本文简要介绍罪刑法定原则的内涵和价值的基础上对罪刑法定原则与超法规违法阻却事由之间的张力进行了分析，从而得出超法规违法阻却事由并不违反罪刑法定原则的结论。形式理性和实质理性之间的张力使他们很难在刑法中实现平衡，超法规违法阻却事由是对违法性进行实质评价的必然结果，是实质理性的逻辑延伸，但另一方面也起到了弥补实定法缺陷、促进形式理性的作用；解决了超法规违法阻却事由存在的必要性问题，对于它价值的认知就显得顺理成章，本文认为，超法规违法阻却事由的存在至少可以起到保障人权、促进实质公正以及维护法秩序统一的作用；超法规违法阻却事由的实现分为两个层次，第一个层次是如何在理论上构建超法规违法阻却事由的体系，第二个层次是在司法实践中如何运用超法规违法阻却事由，，本文以德日超法规违法阻却事由的实现模式为范本，提出了我国超法规违法阻却事由体系化构建的基准——社会相当性，并以此为基础构建我国超法规违法阻却事由的理论体系。接着本文介绍了德日等国超法规违法阻却事由的司法实现方式，并对我国超法规违法阻却事由在司法实践中实现的方式进行了简单地反思，进而提出了完善我国超法规违法阻却事由司法实现方式的建议。
[Abstract]:In this paper, the author begins with the basic theory of anti-violation of laws and regulations. Firstly, it introduces the appellation of the reasons of non-violation of laws and regulations in the academic circles, and analyzes the relationship between the appellation and the concept. Then it introduces several views and the theories behind the concept of the reason of breaking the law and tries to define the concept of the reason from the angle of the most close to the reality of China and most in line with the direction of the development of the criminal law in order to define the reason of the prevention of the violation of the law in excess of the law and the theory behind it. After the definition of the concept, this paper introduces and makes a brief comment on the relationship between the reason of breaking the law and the constitution of the crime in the academic circles at present. On this basis, the author puts forward the view that we should reform the constitution system of the four-element crime in our country and include the reasons of breaking the law and blocking the law into it. Because of the "ultra-legal nature" of breaking the law and blocking the cause of the crime, it naturally cannot escape the suspicion of destroying the principle of statutory punishment for a crime. This paper briefly introduces the connotation and value of the principle of legality of crime and punishment on the basis of an analysis of the tension between the principle of legality of crime and punishment and the cause of non-violation of laws and regulations, so as to draw a conclusion that the reasons of non-violation of the law of crime and punishment do not violate the principle of legality of crime and punishment. The tension between formal reason and substantive reason makes it difficult for them to achieve balance in criminal law. The reason of breaking the law is the inevitable result of the substantive evaluation of illegality, and it is the logical extension of substantive rationality. On the other hand, it also plays the role of making up for the defects of the substantive law and promoting the formal rationality. It is reasonable to understand the value of ultra-regulation and its value. The author thinks that the existence of the reason of violation of laws and regulations can at least protect human rights, and it is necessary to solve the problem of the necessity of breaking the law and stop the cause of the violation of laws and regulations, and the recognition of its value is reasonable. The role of promoting substantive justice and safeguarding the unity of law and order; There are two levels in the realization of the reasons of the violation of the laws and regulations. The first level is how to construct the system of the reasons of the violations of the laws and regulations in theory, and the second level is how to use the laws and regulations in the judicial practice to prevent the causes of the violations of the law. Based on the model of the realization of the reasons of the violation of the laws and regulations in Germany and Japan, this paper puts forward the benchmark of the systematic construction of the reasons of the violation of the laws and regulations in our country-the social appropriateness. And on the basis of this, we construct the theoretical system of our country's ultra-laws and regulations to prevent the cause of the violation of the law. Then this paper introduces the judicial realization of the reasons of the violation of laws and regulations in Germany, Japan and other countries, and makes a simple reflection on the way that the reasons of non-compliance of laws and regulations are realized in the judicial practice of our country. Furthermore, the author puts forward some suggestions on how to perfect the way of judicial realization of the violation of laws and regulations in our country.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924

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