犯罪概念形式与实质的理论建构

Theory of the Form and Substance of a Crime

犯罪概念的形式与实质,是刑法理论犯罪界说的焦点,并且由此涉及到对于罪刑法定原则的贯彻。在刑法规范的框架内,犯罪的形式界定与实质界定并不是冲突的;大陆法系、英美法系犯罪成立条件的形式也贯穿着实质的判断。犯罪实质与形式的划分,既是立法实际的复写,也是理论分析的必要。行为的犯罪评价可以通过肯定判断与否定判断来具体实现。基于犯罪的“形式与实质双面统一”的理念,犯罪概念与罪刑法定原则具有形式与内容的统一。

Both the form and substance of a crime center on criminal law and criminology and have some impact on the implementation of the rule of nullum criomen sine lege. In the criminal law regime, the delineation of the criminal form and the delineation of criminal substance do not contradict each other. In continental law and common law, the form of the requirements and constitution of a crime also have something to do with the judgment of the criminal substance. The separation of criminal substance with criminal form meets both the legislative demand and theoretical requirement. As to an act, people can use an affirmative or negative answer to judge whether it is criminal. Based on the belief “that a crime shall be identified both in form and in substance,” a criminal concept and the rule of nullum criomen sine lege shall also be identified both in form and in substance.