构成要件的本土转换

Local Transformation of Constitutive Requirement

构成要件从程序法到实体法的转变经历了将近六个世纪,构成要件也相应地从待证事实引申到法律规范,并与总则中的其他规定产生了联系;构成要件和犯罪构成不是一体两面的关系,两者创立之初所处的社会环境和思想意识形态不同;犯罪构成独具理论性,而构成要件兼具理论性和法定性,前者是刑法总则中的概念,后者是刑法分则中的概念;犯罪构成是构成要件的上位概念,构成要件分有和模仿了犯罪构成的形式和内容,故两者分工不同而结构相似;构成要件由主观和客观两大要素组成,行为、结果、因果关系和罪过固然是构成要件和犯罪构成的共有内容,构成要件的特别之处在于客观要素包含罪量,主观要素包含犯罪目的,这是犯罪构成理论无法涵摄的内容。

The transition of constitutive requirement from procedural law to substantive law has experienced nearly six centuries. Constitutive requirement has also come from the fact extending to the legal norms accordingly, while it has relationships with other provisions in the general of the criminal law. Constitutive re- quirement and crime constitution do not share the same meaning, and at the beginning of their creations, social environments and ideologies are different. Constitutive requirement is only a unique theory, while crime constitution is both theoretical and statutory. The former is in the general provisions and the latter is in the specific provisions of the criminal law. Crime constitution is an upper concept, constitutive requirement imitating and sharing the form and content of crime constitution, therefore both of them have different functions and yet similar structures. Constitutive requirement consists of two main factors, subjective and objective elements, behavior, result, causality and sin are also common contents in crime constitution. The specialty of constitutive requirement includes criminal quantity in the objective perspective and contains criminal purpose in the subjective perspective ,which is the content of crime constitution failing to take on.