罪刑法定原则下混合犯罪概念的正当性探析

当前,对于现行刑法规定的犯罪概念存在各种批判,从多个方面论证在罪刑法定原则下可以发现,我国刑法的混合犯罪概念具有不容置疑的正当性。它能够科学地解决刑法形式合理性与实质合理性的冲突,不存在发生冲突时以社会危害性为最高标准突破刑事违法性进行类推的问题;它体现了社会危害性与形事违法性的统一,不存在社会危害性标准与规范标准冲突的问题;它由本文和但书两部分共同组成,不存在逻辑矛盾的问题。

Rationality of the Hybrid Criminal Definition under Doctrine of A Legally Prescribed Punishment for A Special Crime

Based on the response to various criticism about the current hybrid criminal definition,the article thinks that,under principle of legality,the current hybrid criminal definition is rational.It can resolve the conflicts between form rationality and essence rationality scientifically,doesn't have the problem that takes the social harmfulness as the maximal standard to outbreak criminal illegality in order to analogize when the conflict occurred;It has embodied the unification between social harmfulness and criminal illegality,doesn't have conflict problem between social harmfulness standard and legal standard.It consists of two parts: the main body and the proviso,doesn't have the logical contradiction problem.