论构成要件理论的违法行为类型说

为了克服构成要件的行为类型说在体系上的不足,在刑法学中出现了构成要件的违法行为类型说,该学说是日本刑法学中构成要件理论的通说观点。以构成要件与违法性的关系为标准,违法行为类型说又可以分为认识根据说和存在根据说。认识根据说认为构成要件与违法性是相互独立的存在,但是行为如果该当构成要件就可以推定其具有违法性;存在根据说认为构成要件本身就是类型化了的不法,是违法性的价值实体。

Doctrine of Types of Illegal Activity in the Theory of Constructive Conditions

To overcome to shortcomings of doctrine of types of activity, the doctrine of types of illegal activity arises in criminal law which became commonly accepted in Japan. Set the standard on the relationship between constructive conditions and illegality, the doctrine of types of illegal activity can be divided into doctrine of grounds of knowledge and doctrine of grounds of existence. The former regards constructive conditions and illegality as independent factors. Only activities are illegal when they form constructive conditions. The latter regards constructive conditions as typified illegality and form value entity.