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客观处罚条件是特殊的犯罪成立要素,它与故意和过失无关。从理论发展来看,客观处罚条件经历了由刑罚限制事由向刑法扩张事由的嬗变。从它的体系性地位来讲,真正的客观处罚条件是构成要件、违法和责任之后的第四犯罪范畴,而不纯正的客观处罚条件则应当还原为不法构成要件。中国刑法中也存在类似客观处罚条件的特殊构成要件要素,对此,妥当的做法应当是借鉴故意理论的要素分析模式,客观处罚条件在中国现行立法体系之中没有生存空间。
Objective punishment is a special element of the establishment of a crime, it has nothing to do with intentional and fault. From the point of view of theoretical development, the conditions for objective punishment have undergone a change from the cause of punishment to the expansion of criminal law. In terms of its systematic status, the true objective penalty conditions are the fourth category of crimes after the formation of elements, illegality and responsibilities, while the impure objective penalty conditions should be restored to the elements of unlawfulness. In Chinese criminal law, there are also some elements of special constitutional requirements that are similar to objective punishment conditions. For this reason, proper practice should be based on the elemental analysis model of intentional theory. There are no living spaces in the current legislative system in China.