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违法性作为大陆法系语境下构成犯罪论体系的一个重要概念,对其实质的分析无论是在理论上还是法律实践中都具有重要的意义,然而长期以来,我国传统的刑法学理论受前苏联四要件犯罪构成说的影响,将对犯罪问题的价值判断与事实判断混为一谈,忽视了对违法性实质探讨,这无论在理论上还是在司法实践中都会造成诸多误区,目前接受大陆法系语境下的分阶层的犯罪论体系已然成为学界的共识,也使得违法性实质的探讨的意义显得犹为重要,然而凝结在违法性论中形式违法性与实质违法性、主观违法性论与客观违法性论的争议,又使得我们在接受违法性概念时陷于混乱,本文立足于“责任是主观的,违法是客观”的态度,在区分作为心理事实的主观因素与作为责任事实的主观因素的基础上进一步探讨违法性的实质。
As an important conception of the criminal system in civil law system in China, the analysis of its essence is of great significance both in theory and in law practice. However, for a long time, the traditional theory of criminal law in our country is influenced by the former The impact of the constitution of the four elements of the Soviet Union, the confusion of value judgments and factual judgments on the issue of crime, ignoring the substantive discussion on the illegality, which in theory or in judicial practice will cause a lot of errors, the current acceptance of civil law The hierarchy of crimes in the state has become the consensus of the academic circles, but also makes the significance of exploring the essence of illegality important. However, the combination of formal illegality and substantive illegality, subjective illegality and objectivity in the theory of illegality Dispute of the theory of illegality makes us confused in accepting the concept of illegality. Based on the attitude that “responsibility is subjective and illegality is objectivity ”, this article divides the subjective factors as the psychological fact and the subjective as the fact of responsibility On the basis of factors to further explore the essence of illegality.