社会危害性与刑事违法性关系新探

我国刑法以综合式定义模式确立了刑事违法性与社会危害性中犯罪概念的坚实地位,并且建构了二者的内在统一。然而,近年来,国内一些学者开始陆续质疑刑事违法性与社会危害性的关系,认为二者是冲突不可调和的,并认为应当将社会危害性驱逐出注释刑法学领域。在刑事一体化视域中,社会危害性与刑事违法性之关系进程是行为事实与价值评价相统一的进程,其关系则演绎为经由初始的紧张走向一体的和谐。

New exploration into the relationship between social harmfulness and criminal violation

Our criminal law has laid solid foundation for the definition of crime in terms of criminal violation and social harmfulness and establishes the inherent unification of both criminal violation and social harmfulness.However,some domestic scholars begin to doubt the relationship between social harmfulness and criminal violation,holding the view that they conflict with each other and can not negotiated and that the social harmfulness should be eliminated from the field of criminal law.In the view of criminal integration,the process of relationship between social harmfulness and criminal violation is the process of unification of behaviour fact and value evaluation.It relation develops from the original tension to integrated harmony.