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根据《刑法》第13条的犯罪定义,刑法教义学应当区分体系性的出罪与但书的出罪。不具有构成要件该当性、存在违法阻却事由或者否定责任时,不符合第13条规定前半段的内容,在教义学上属于犯罪论体系内的出罪。只有该当构成要件、违法且有责的行为,才属于《刑法》第13条前半段的内容,能够按照但书规定出罪。但书出罪的动因存在四种类型:构成要件该当性成立后仍有可能因对构成要件的整体评价而将行为出罪;违法性被部分排除时,行为的剩余违法性量较少,也可能导致按照但书进行出罪;责任的程度较轻时,也为但书出罪留有余地;虽然三阶层的判断都已成立,但综合全案存在多重从宽处罚事由或者其他不具有处罚必要性的事由时,对行为仍可按照但书规定出罪。但书出罪属于犯罪成立的反向判断,其根据是刑法谦抑和处罚必要性理论,因而是以量刑发动合理性来限制犯罪成立判断的,属于量刑反制定罪。因此,刑法理论应当对但书与罪量的体系性安排进行反思。
According to the definition of crime in Article 13 of the Criminal Law, the doctrine of criminal law should distinguish between systematic crimes and provocations. In the doctrine of ignorance of the constitutional elements of the doctrine of criminal offenses, the doctrine of non-compliance with the first half of the provisions of Article 13 does not have the due diligence or the objection of the law. Only the elements that constitute such a violation, which are unlawful and accountable, belong to the first half of Article 13 of the Criminal Law, and can be convicted according to the proviso. However, there are four types of motives for the offenses: Constitutive Elements It is still possible that the offenses will be offended by the overall evaluation of the constitutional elements after they become established. When the unlawfulness is partially excluded, the amount of the unlawfulness of the acts will be less. May lead to an offense in accordance with the Dan book; when the degree of responsibility is light, it also leaves room for the burglary; although all three levels of judgments have been established, there are multiple lenient punishments or other non-punitive sanctions Necessary reasons, the behavior can still be in accordance with the provisions of the proviso. However, the crime of the book is the reverse judgment of the establishment of the crime. Based on the theory of moderation and punishment necessity of the criminal law, it is based on the rationality of sentencing to limit the judgment of the establishment of crime, which belongs to the sentencing of sentencing. Therefore, the criminal law theory should reflect on the systematic arrangement of provocations and crimes.