論過失犯中的違法性 = Discussion on the Illegality of Negligent Crime

다국어 초록 (Multilingual Abstract)

依据大陸法系傳統的刑法學理論，因爲過失和故意幷排而成爲責任形式，所以應在責任論上探討過失，而違法性上則不應考慮過失。面對舊過失理論把注意義務看作是責任形式所造成的體系上混亂，刑法學者提出了新過失理論以及以目的行爲論爲基礎的構成要件要素說。筆者認爲都有欠缺之處，事實上過失具有雙重机能，旣是構成要件要素又是責任要素，而且在評价內容上也是不同。幷且，具備構成要件符合性的過失行爲可以成立違法性阻却事由。但是與故意犯相比，過失犯所具有的不法內容應當小于故意犯。在缺乏法益侵害的認識和意志的過失犯中，不能爲了單純地抵消違反客觀注意義務的行爲反价値，而提出過高的主觀上要求。在與中國刑法體系具體相對照時，雖然依据刑法第13條能勾解決過失犯的違法性阻却事由的問題，但是缺少必要的法理依据。大陸法系違法性理論，對中國的過失犯和排除社會危害性理論建設而言，也有積極的借鑒作用。

다국어 초록 (Multilingual Abstract)

Based on the traditional criminal law theory of law system, since negligent and intentional crime are considered to be the liability form in parallel, The negligent crime should be discussed on the level of liability theory, and should not be taken into account in illegality. Coping with the confusing of system caused by the old theory of negligence which takes duty of care as liability form, scholars in criminal law have proposed a new theory of negligence as well as the theory of constitutive elements of crime based on the purpose of behavior. I believe that there are defects in both cases. In fact, the negligence has a dual function, it is not only the element of crime, but also the factor of liability. Both are different in terms of the evaluation content. Besides, negligent act with compliant constitutive elements of crime is ground for elimination of illegality. However, compared with an intentional crime, negligent crime has less illegal content. To the negligent criminal who is lack of cognition and will of violating legal interests, one should not to simply offset the breach of duty of care act objectively anti-value, and request too much subjectively. In contrast particularly to Chinese criminal justice system, although it could solve ground for elimination of illegality of negligent criminal according to criminal law article 13, the theory of criminal law of Chinese criminal justice system have a positive reference effect on the theory construction of negligent criminal and exclusion from social harmfulness.