论构成要件符合性与违法阻却事由之关系

On the Relationship between Compliance of Constitutive Elements and Causes of Illegality Deterrence

构成要件符合性与违法阻却事由之间的关系,是阶层犯罪论体系最基本的理论问题。对于数个、无数个自然行为,构成要件符合性与违法阻却事由是原则与例外的关系,即行为符合构成要件时,绝大多数情况下不符合违法阻却事由而违法,极少数情况下符合违法阻却事由而不违法;而对于同一个自然行为,符合构成要件而推定违法与符合有效违法阻却事由而推定不违法之间是矛盾关系,可浓缩表达为构成要件符合性与违法阻却事由属于矛盾关系。这可以为构成要件符合性不具有与违法性、有责性同样的独立阶层体系地位提供一种论证。

The relationship between compliance of constitutive elements and causes of illegality deterrence is the most basic theoretical problem in the theory of class crime.In the case of several or countless natural behaviors,the compliance of constitutive elements and causes of illegality deterrence are the relationship between principle and exception,that is,when behaviors conform to constitutive elements,it is illegal in the vast majority of cases if it does not meet causes of illegality deterrence,and in very few cases it is legal if it meets the causes of illegality deterrence.As for the same natural behavior,there is a relationship between the presumption of unlawfulness in accordance with the constitutive elements and the presumption of lawfulness in accordance with the effective causes of illegality deterrence.The contradiction relationship can be expressed as the compliance of constitutive elements and causes of illegality deterrence.This can provide an argument for the fact that compliance of constitutive elements does not have the same independent hierarchy status as illegality and responsibility.