围绕着客观处罚条件的理解,德日刑法理论出现了各种各样的学说,其总体的趋势是告别传统的刑罚阻却说,而将其作为犯罪论考虑的课题。但是无论是“还原说”还是“独立要件说”可能都存在疑问,还原说没有注意到构成要件与客观处罚条件的差异,同时对于“违法”的理解仅仅停留于日常生活层面,并未从规范的角度着眼。作为独立要件说的内在客观处罚条件,可能与构成要件的违法推定机能存在紧张关系,而且也未能处理好与故意理论的衔接。因此,需要将内在的客观处罚条件都归入外在的客观处罚条件,从而形成统一性的客观处罚条件,仍然以应罚性与需罚性为基础,作为刑罚阻却要件,并且需要进一步扩大在分则中的适用。刑事政策学需要与刑法教义学保持适当的距离,强调刑法教义学的独立品格具有重要意义。 Around the objective understanding of the conditions of punishment, the theory of criminal law has emerged in Germany and Japan a wide range of doctrines, the general trend is to say goodbye to the traditional impediment, but rather as a crime to consider the issue. However, there may be doubts whether it is “reduction theory” or “independent theory”, and the reduction states that it has not noticed the difference between the constitutional requirements and the objective punishment conditions, meanwhile, the understanding of “illegality” only stays in daily life Level, not from a normative point of view. The internal and objective penalties as an independent requirement may have a tension with the presumption functions of the presumption of illegitimacy that constitute the elements, and they also fail to handle the connection with the intentional theory. Therefore, it is necessary to classify the internal objective punishment conditions into the external objective punishment conditions so as to form a uniform and objective objective penalty condition, which is still based on the punishable penalty and punitive punishments as a deterrent element and needs to be further expanded Subsection applies. Criminal policy studies need to maintain an appropriate distance from the teaching of criminal law, emphasizing the independent character of the teaching of criminal law of great significance.