体系与机能之间——论构成要件与违法性的关系

Between the System and Function: on the Relationship between the Constructive Factors of Crime and Illegality

从体系上来说,构成要件是考察构成要件与违法性关系的切入点。关于构成要件概念的行为类型说与违法类型说会导致两者形成不同的关系样态。而有关两者关系的分离论与一体论又会在犯罪论体系上产生不同的体系效应。这些不同观点并非由机能期待所决定的,而只不过是学者们不同的解释选择。

Systematically speaking,we should observe the relationship between the constructive factors of crime and the illegality from the perspective of the constructive factors of crime.Activity pattern and illegality activity pattern are two theories about the conception of the constructive factors of crime,which lead to different explanations about the relationship between the constructive factors of crime and the illegality,however,these two different explanations which are the separation theory and the unity theory produce distinct systematic effects.These diverse viewpoints are not determined by the function but different interpretation choices of scholars.