社会危害性是主观要素和客观要素的统一,将行为人和判断者的主观要素排除在社会危害性之外是错误的。社会危害性是一个法律规定,但它属于法律上的不确定条款,其内涵具有“空筐结构”的特征,其具体内容由裁判者根据具体的情形来加以确定。社会危害性是事实和价值的统一,认为它单纯是价值判断的观点并不可取。社会危害性符合实质的罪刑法定原则和实质正义的要求,具有保障人权的功能。 Social hazard is the unity of subjective and objective elements. It is wrong to exclude the subjective elements of actors and judges from the harmfulness of society. The social harmfulness is a legal rule, but it belongs to the legal uncertainty clause, its connotation has the characteristic of “empty basket structure”, and its specific content is determined by the judge according to the specific situation. Social harm is the unification of facts and values, and it is not advisable to view it simply as a value judgment. Social harm meets the substantive requirements of the principle of legality and substantive justice of crimes and has the function of safeguarding human rights.