论社会危害性与罪刑法定原则的一致性——兼论我国犯罪构成体系的完善

Identity between the Social Harmfulness and the Principle of Legality with Reference to the Constitution of Crimes

社会危害性是我国传统刑法学的基石性概念,因此我国传统的刑法理论被称之为社会危害性理论。随着罪刑法定原则在我国刑法中的确立,一些学者开始对社会危害性产生了质疑。事实上,社会危害性在我国司法实践中所承担的是出罪功能,因而与罪刑法定原则存在一致性。当然,基于我国犯罪构成是评价行为罪与非罪的惟一标准,因此应当把社会危害性的出罪功能纳入到犯罪构成中来。

Based on the concept of social harmfulness, the traditional theory of criminal law in China is accordingly termed as the ＂theory of social harmfulness＂. However, following the establishment of the principle of legality in the criminal law in our country, some criminal law scholars have begun to question and challenge the above traditional theory. In fact, the function of social harmfulness is to expel the action from crimes, which completely accords with the function of the principle of legality. Reasonably, we should bring the factor of social harmfulness into the constitution of crimes, for the latter is taken as the unique standard of judgment in our country.