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可罚的违法性是在德日三阶层犯罪论体系下形成的旨在将微罪行为非罪化处理,限制国家刑罚权的发动,保障人权的一系列理论。可罚的违法性以刑法的谦抑性和实质违法性为理论基础,以结果无价值和行为无价值立场下的法益和行为二元化为判断标准,在犯罪论体系中具有违法阻却性。该理论和我国《刑法》第13条中但书规定有一些共通之处,因此对我国但书规定的完善和解读有合理的借鉴意义。
The punishable illegality is a series of theories formed under the third-class theory of crime in Germany and Japan aimed at decriminalizing the criminal act, restricting the launch of the criminal right of the state and safeguarding human rights. The punishable illegality is modeled on the modest and substantive illegality of the criminal law and the duality of the legal benefits and behavior under the non-value of the result and the valuelessness of the act as the judgment standard, which has the unimpeded resistance in the criminal theory system. There is some commonalities between the theory and the proviso of the proviso in Article 13 of the Criminal Law of our country, so there is a reasonable reference for the perfection and interpretation of the proviso of our country.