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刑事违法性,从形式上看,就是指行为违反刑法的实定法规范;从实质上看,行为还必须严重侵害或威胁了法应该保护的对象。刑事违法性包括立法层面的刑事违法性与司法层面的刑事违法性,立法层面的违法性判断是一种将具有实质违法性的行为法定化、形式化的判断过程。立法层面的违法性判断的标准是是否具有实质的违法性。实质具有刑事违法性的事由被立法予以犯罪化后,司法层面的违法性判断就需要进行形式违法性与实质违法性的双层判断,形式违法性的判断在前,实质违法性判断在后,行为不具有形式违法性,就无须进行实质违法性的评价。实质违法性标准针对超法规的违法性阻却事由进行,旨在救济具有形式违法性的非罪行为以及收缩刑事法网。
From the perspective of formality, criminal illegality means that the act violates the normative norms of the criminal law; in essence, the act must also seriously infringe or threaten the object that the law should protect. Criminal illegality includes criminal illegality at the legislative level and criminal illegality at the judicial level. Judicial illegality at the legislative level is a process of judging and formalizing acts that have substantive illegality. Whether the standard of illegality judgment at the legislative level is materially illegal. Substantive criminal causes of criminalization by the legislation, the judiciary level of illegality to judge the need for formal illegality and substantive illegality of the double judgments, the formal illegality of judgments before the substantive illegality judgment, The act does not have the form of illegality, there is no need for substantive illegality of evaluation. Substantive standards of illegality against super-law to prevent the obstruction of the reason, to remedy non-criminal activities of a form of non-criminal and shrink criminal law net.