社会危害性判断标准问题研究

Research on the Standards of Social Harmfulness Judgment

社会危害性作为犯罪的本质,是犯罪论乃至整个刑法学体系的基石,对刑事立法及司法均具有重大意义。但由于社会危害性本身固有的抽象性和模糊性,对其判断标准学界始终未达成一致。随着德日大陆法系刑法学说的引入,我国传统刑法学理论受到重大冲击,社会危害性判断标准更是众说纷纭。综合各学说观点,对社会危害性的判断,应当在三阶层犯罪论体系的基础上,站在"修正的结果无价值论"立场,坚持以客观行为内容为标准,排除主观内容的影响。

The nature of the crime as a social harmfulness, is the cornerstone of crime on the whole system of criminal law, and criminal legislation and justice are of great significance. However, due to social harm inherent abstraction and ambiguity, it is not consis- tent with the standards of its judgment standards. With the introduction of German and Japanese criminal law doctrine of civil law, the traditional theory of criminal law is a big impact, and public opinions vary on social harmfulness judgment standards. Summing up all the theory point of view, the judgment should be based on three stratums of the criminal system. ＂Stand on the position of the results of the modified doctrines of valuelessness＂, adhering to the objective behavior contents as the standard, excluding the influence of subjective contents.