二层次四要件犯罪构成论——兼议正当化行为的体系地位

On the Consitituion of Crime Theory

以解决正当化行为在犯罪论体系中地位不定,及其与犯罪构成关系不明为突破口;以反映定罪过程、权力与权利的平衡以及对抗制的诉讼程序特点为价值立场;兼顾中国已有的理论与实务情况,主张在我国犯罪构成论的应有结构为两层次四要件犯罪构成结构。此即:第一层次,三个要件,依次为犯罪客观要件、犯罪主体要件和犯罪主观要件;第二层次为犯罪客体一个要件,其中,正当化行为等作为排除犯罪客体的事由在此纳入犯罪构成要件之中。无此事由,犯罪即告成立。

The viewpoint of this article is that the should - be structure of the theory about the constitution of crime should be defined as two layers and four requisites. This article takes the arguments about the uncertainty of justified behavior in the system of crime theory, the unclear relationship between justified behavior and the constitution of crime as a solid base, takes the judicial proceeding characteristics which reflect on the conviction procedure, balance between power and right, adversary system as a standpoint of value, and takes the present theories and legal practices as references at the same time. Concretely, two layers and four requisites will be defined as follows： the first layer, which is made up of three requi- sites -the objective requisite of crime, the subject of crime and the subjective aspects of crime; the second layer, which has one requisite only - the object of crime. Justified behavior is absorbed in the requisites in the constitution of crime as a cause of eliminating the object of crime, a crime will be committed without justified causes.