主观要件证明难题的一体化破解——兼论要素分析模式之提倡

我国关于主观要件的证明已实现三大转变：一是证明依据由“主观性证据至上”到“客观性证据优先”；二是证明对象由“主观要件优先”到“客观要件优先”；三是证明方法由“思路单一”到“对策多元”。主观要件证明难题的解决需要实体法与程序法协力并进。实体法层面宜改采要素分析模式，允许在一罪名内部存在不同性质的主观要素，不以行为人对后果的主观态度作为罪过唯一的判断标准，承认主观要素在刑法规范层面存在位阶关系。要素分析模式符合罪责原则，与我国推行的陪审员制度改革精神契合，且符合疑罪从无的要求，可以显著降低证明难度。

Integrated Solution to the Proving Problem of Subjective Elements:with Concurrent Discussions of the Promotion of the Factor Analysis Mode

There have been three major changes in the proof of subjective elements in our country. First, the proof basis has changed from “subjective confession first” to “objective evidence first”; second, the object of proof has changed from “subjective elements first” to “objective elements first”; third, proof methods have changed from “single idea” to “multiple countermeasures”. To solve this problem of subjective elements, it requires the cooperation of the substantive law and procedural law. At the substantive law level, it is advisable to adopt the element analysis model to allow the existence of subjective elements of different natures within a crime. The perpetrator's subjective attitude towards the consequences should not be used as the only criterion for the judgment of subjective offenses, and the subjective elements should be recognized as having a hierarchical relationship at the criminal law level. The element analysis model can reduce the difficulty of proof. It conforms to the principle of guilt and responsibility, conforms to the spirit of the reform of the jury system implemented in our country, conforms to the requirement of innocence of questionable crimes, and can significantly reduce the difficulty of proof.