可罚性不应被还原为其他犯罪成立要件的要素,应成为犯罪成立的独立要件;可罚性的内涵除包含客观处罚条件与客观不处罚条件外,还应包含预防必要性因素;作为体系范畴的可罚性具有平衡罪刑关系和作为与刑事政策沟通节点的功能。 The penalty should not be restored to the elements of the other elements of the crime should be established as an independent element of crime; the connotation of the penalty includes objective conditions of punishment and objective non-penalty conditions, but also should include the necessity of prevention; as a system The category of penalty has the function of balancing the relationship between crime and punishment as well as the communication node with criminal policy.