社会危害性在犯罪构成理论中的地位探析

Research on the Position of Social Harmfulness in the Theory of Constitutions of Crimes

目前在刑法学界存在着社会危害性理论备受指责的现象,有的学者甚至认为应将社会危害性逐出我国的犯罪构成理论。这是不科学的。我们应该运用立体动态思维的方式正确分析犯罪概念、犯罪构成与罪刑法定主义的关系,不但要保留社会危害性的地位,更重要的是将其明确作为一个独立的犯罪成立的条件,这样才是对传统犯罪构成理论批判性的发展。

The theory of social harmfulness is severely criticized by some scholars in the field of criminal law jurisprudence, and even some think it should be ejected from the theory of constitutions of crimes. But those opinions are not scientific. We should analyze the relations among criminal concept, constitutions of crimes and the principle of that crimes and punishments are all stipulated by law with the mode of solid dynamic thinking, so the station of social harmfulness not only should be held but also as a separate element of the constitutions of crimes, and only by this can the existing system of constitutions of crimes be developed critically.