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社会危害性概念与我国现有的犯罪构成体系之间存在着紧张关系,其根源在于社会危害性(实质违法性)被理解为犯罪的一个特征。我国现有的成立犯罪的理论实际上可以理解为“四要件体系—社会危害性”双层结构,但应将社会危害性的概念置换为法益侵害的概念,并且将之理解为犯罪成立的一个阶层(违法性阶层)。此外,还需要醇化构成要件的概念、析出责任阶层。我国的犯罪构成理论应改造为“构成要件该当性-违法性-有责性”的三阶层体系。
There is a tension between the concept of social harmfulness and the existing constitutional system of crime in our country. The root of this is that social harmfulness (substantive illegality) is understood as a feature of crime. The existing theory of criminal establishment in our country can actually be understood as a “four-component system - social hazard” double-layered structure. However, the concept of social harmfulness should be replaced by the concept of legal benefits and should be interpreted as a criminal establishment A class (illegitimate class). In addition, the concept of alcohol compositional elements is also required to isolate the responsibility class. The theory of constitution of crime in our country should be transformed into a three-level system of “the proper elements of constitutional elements, illegality and responsibility”.