犯罪与刑事违法性关系论纲

犯罪可以从形式的犯罪、实质的犯罪、司法评价的犯罪三个侧面来加以阐释。形式的犯罪就是罪刑规范;实质的犯罪是全部具体罪刑规范的共同法律本质。两者都是立法者的意志体现。它们本身都没有刑事违法性,只是刑事违法性的判断标准。只有司法评价的犯罪,才存在刑事违法性判断。我国本无刑事违法性的理论,应当创建。只有创建了科学的可操作性的刑事违法性理论,才能既坚持罪刑法定原则,又贯彻"无危害即无犯罪"原则。刑事违法性是司法者评价生活行为事实在客观上是否违反法秩序的步骤和标准。它是犯罪成立条件之一。我国应当对《刑法》第13条赋予新的理论内涵以完成刑事违法性理论的创建。

Outline Review on the Relationship of Crimes and the Criminal Illegality

Crimes can be interpreted from such three aspects as crimes in form,crimes in substance and crimes in judicial evaluation.Both indicating the will of legislators,crimes in form refer to the norm of crime and punishment;while crimes in substance refer to,the common legal nature as to the norm of the entire specific crimes and punishment.However,crimes in form and crimes in substance don't bear the nature of the criminal illegality by themselves,but acting as the judging criteria thereof.Only crimes in judicial evaluation can decide the criminal illegality.Thus a scientific and feasible theory of the criminal illegality shall be established in our country in order to adhere to the principle of legally prescribed crimes and punishment and to practice the doctrine of "no conviction of crimes without harm".Acting as one of the crime constituents,the doctrine of the criminal illegality offers judicial officials with procedures and criteria in evaluating whether the daily life conducts have violated the legal order.Therefore,regulations of Article 13 in the Criminal Law of PRC shall be embedded with innovated conceptions so as to establish the theory of the criminal illegality.