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违法性判断的缺失是我国传统犯罪构成理论中存在的一个突出问题。而现有犯罪构成要件中犯罪客体要件并不具备犯罪区分功能,将违法性概念融入到犯罪客体要件之内,有利于现有犯罪构成理论矛盾的解决。考虑到我国刑法中存在罪量因素,改造后的犯罪客体应采用实质违法性标准,在违法性判断过程中应坚持法益侵害说。将犯罪客体置放于犯罪构成体系中最后一个要件,更为合理。
The absence of illegitimate judgments is a prominent issue in the theory of constitution of traditional crime in our country. However, the elements of the existing criminal elements do not have the function of distinguishing the crimes, and the concept of illegality is incorporated into the elements of the criminal object, which is in favor of the solution to the existing theory of the composition of crime. Considering the existence of sin factors in criminal law of our country, the transformed criminal object should adopt the standard of substantive illegality and should insist on violation of law and interests in the process of judging illegality. It is more reasonable to place the criminal object as the last element in the constitution of crime.