违法性根据之争及选择——以保护法益的方法论为视角

Dispute Over the Illegal Nature and the Choice From the Perspective of Methodology of Protecting Legal Interests

行为无价值论与结果无价值论都有保护法益的目的,二者属于不同的法益保护模式。行为无价值论不仅难以解决行为无价与结果无价双重判断的层级界定问题,还可能导致重复评价,因而存有缺陷。相较而言,结果无价值论则是在犯罪构成三阶层体系下,准确厘清了不法与责任的关系。通过对不法圈的合理划定,充分确保了刑法的指引功用的发挥,更能够周延地保护法益,具备合理性。由此,结果无价值论应当是法益保护方法论的理性选择。

Behavior worthless theory and result worthless theory both have the purpose to safeguard the legal rights, but they are two different protecting modes . Behavior worthless theory has its inner deflect because it can hardly determine which is the proper priority about the judgment on behavior worthless and result worthless. And it may cause repetitive assessment on criminal act. On contrast, result worthless theory can give a reasonable explanation about the relationship between criminal wrongfulness and criminal responsibility under the three - level system of constitution of crime. Result worthless theory is more reasonable and can define the limitation of criminal wrongfulness which guarantee the realization of criminal law＇ s guiding functions and make the legal interests fully protected. In a word, result worthless theory is the reasonable selection of methodology of protecting legal interests.