法秩序统一性视野下的刑事不法判断

The Determination of Criminal Wrongfulness under the Perspective of the Unity of Legal Order

法秩序统一性原理是指引刑事不法判断的重要工具,由于不区分违法性概念与不法概念、忽略自然犯与法定犯不法判断的差异、混淆合同有效性与行为违法性,法秩序统一性原理对于刑事不法判断的意义未能被准确把握。违法性评价具有确立举止规范的重要意义,法秩序统一性原理要求确保民刑举止规范的一致性,在此意义上应坚持违法一元论。在刑事不法判断中,构成要件判断原则上应根据刑法规范目的独立进行,违法阻却事由判断则应在各部门法中保持一致,前置法上的违法阻却事由在刑法上同样具有正当化效果。但是,判断法定犯的构成要件时,需要先行判断行为违反了前置法的何种具体规定,刑法不能突破前置法确定的规范内涵而对相关构成要件要素做扩张解释。

The principle of unity of the legal order is an important tool in the determination of criminal wrongfulness.The significance of the principle of unity of the legal order with regard to the determination of criminal wrongfulness has not been accurately grasped due to the failure to distinguish the conception of unlawfulness(Rechtswidrigkeit)and wrongfulness(Unrecht),ignoring the difference between the determination of natural crimes and statutory crimes,and the mix-up over the validity of a contract and the unlawfulness of a behavior.The evaluation of unlawfulness is of great value in establishing norms of conduct,while the principle of unity of the legal order requires the consistency of norms of conduct between civil law and criminal law,thereby the monism of wrongfulness should be adhered to.In the determination of the criminal wrongfulness,the test of constituent elements should in principle be carried out independently according to the purpose of criminal norms,while the assessment of justification should maintain consistency among all branches of law,which means the justification in preliminary laws shall have an equal justifying effect in criminal law.However,when testing the constituent elements of crimes mala prohibita,priority should be given to deciding what specific provisions in preliminary laws have been violated,and criminal law cannot make an expansive interpretation on the relevant elements exceeding the normative connotation provided by preliminary laws.The identity of the object evaluated in the criminal law and the preliminary laws,is a primary premise for applying the principle of unity of the legal order is.