社会危害性理论在原社会主义法系国家的当代命运

The Contemporary Fate about the Theory of Social Harmfulness in the Former Socialist Legal System Countries

作为社会主义刑法基石的社会危害性理论，无论是在我国还是在原社会主义法系国家，都经历了从一统到受到质疑与批判的过程，甚至在有些原社会主义法系国家，干脆彻底放弃了这一理论。当今的俄罗斯等原社会主义法系国家社会危害性的反对论者认为，社会危害性存在模糊性、意识形态化和与法治国理念相违背的缺陷。社会危害性的赞成论者从社会危害性的渊源、社会危害性在刑法上的体现，社会危害性与意识形态及法治国的关系对社会危害性反对论者的论据逐一进行了反驳。在坚守我国社会危害性理论的同时要扬长避短，将其改造成与我国的刑事立法和刑事司法实践相适应的理论体系。

As the foundation of socialist criminal law, the theory of social harmfulness experienced the process from unification to be questioned and criticized, both in China and the former socialist legal system countries. Even in the later countries, some just abandoned this theory completely. The opponent against the theory in today＇s Russia and other former socialist legal system countries who consider that exist defect in fuzziness, ideologicalization and contrary to the rule of law concept. Commentators in favor of the theory refute the arguments one by one with opposition commentators from the socia/harm of origin, embodied in the criminal law, and the relations with the ideo!ogy and legal state. We should stick to our theory of social harmfulness, while exploiting its strong points and avoid exposing its weaknesses, and then transform it into the theoretical system which adapt with our criminal legislation and judicial practice.