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刑事违法性作为一种规范评价,本质是法益侵害,社会危害性的内容应解读为法益侵害。我国旧刑法在规定类推制度的前提下,犯罪模式是以社会危害性为主,以刑事违法性为辅的;新刑法确定罪刑法定原则后,社会危害性以“但书”规定,在司法范围内具体的、个别的判断中发挥着出罪的作用,犯罪模式演变为刑事违法性为主,社会危害性为辅。危害性判断是罪刑法定原则的补充,与刑事违法性并无冲突。以此二元模式为基础,构建我国刑法中以肯定入罪要件和否定出罪要件为要素的双层递进的犯罪论体系。
As a kind of normative evaluation, the criminal illegitimacy is essentially the content of legal interests infringement and social harmfulness should be interpreted as legal infringement. Under the premise of stipulating the system of analogy, the criminal mode in our country is dominated by social harmfulness and supplemented by criminal illegality. After the new criminal law establishes the legal principle of criminal punishment, the social harmfulness is stipulated in the " Specific and individual judgments within the judicial sphere play a role of guilty, and criminal patterns evolve into criminal illegitimacy, supplemented by social harmfulness. Hazard judgments are the supplement to the principle of legality of crimes and punishments, and there is no conflict with criminal illegality. Based on this dualism model, this paper constructs a double-layered crime theory system based on the elements of affirming criminal convictions and negative convictions.