Chen Zhonglin: "the principle of criminal law of Italy" (comment version) translator Preface(2010-11-22 14:49:58)

: Gossip

                      Translation ' Sequence

             

       Modern criminal law system, Italy is "the cradle and the hometown of" criminal law; modern criminal law theory is concerned, Italy is the origin of modern criminal law schools in the land. Italy's current criminal code, i.e.1930Years of penal code, "at that time in the legislation represents one of the most interesting achievements"[1]The theory of criminal law in Italy, there are many attract sb.'s attention development on the basis of inheriting the tradition. As a study in Italy nearly five years scholars, translators are obliged to as much as possible to introduce some special things in Italy criminal law, in order to promote China's criminal legislation and criminal law theory progress. The publishing house of law support, so with this in principle of criminal law before the readers "". For readers to better understand the contents of this book, hereby to the background of the book makes some necessary introduction.

       The author of the book, Du Li Ao. Padovani 1944Years3Month27DayBorn in Italy and the,1967Italy students graduated pizza highest quality high school of law.1969Years at the University of Pisa as a criminal law teaching,1973As the school year tenure,1980Year in, year only36Water - year-old, ranks in Italy40Before the age of the lifelong Professor Award can be counted on one's fingers is Professor of.1988Year for Italy students in social science and applied science quality supreme pizza Santa Ana higher university learning and doctoral student lifelong professor of the college, "Italy" magazine deputy editor of criminal legislation and "magazine" Italy criminal law and criminal procedure law; "member magazine" crime and punishment "and" Journal of economic criminal law science Committee, the criminal law of Italy society member, member of association of international criminal law,Peruviana Honorary member of society of criminology, and at the same time, Italy is also one of the national prevention and Social Defence Institute founder, main monograph "common crime particularity", "labor criminal law", "punishment of Utopia - On the penalty system reform "," criminal law "," criminal law and the constitution of crime ". "Criminal law" is the principle of Du Li Ao. One of Padovani's representative, since1991Years since publication, has been the subject of criminal law theory and the judicial practice of highly, is Italy reprint the fastest monographs of textbook of criminal law in recent years.

       The book was warmly welcomed in Italy, not only because the author is a contemporary Italy criminal law scholars agree that "the most outstanding, the most admired" criminal jurists, also lies not only in the book "academic originality and importance of" shows the author "legal culture foundation, the profound wisdom and widespread interest based, it be not of the common sort of scholars". More importantly, since the1980Years, he has been to the criminal law authority identity participated in the Italy various main leader of the drafting of the criminal act --  All kinds of criminal law of Italy Department of justice organization committee for revision[2]On legislation, the spirit of understanding, more authoritative generally incomparable. In addition, this text concise and depth, unlike many of the Italy criminal law as doctrinaire, perhaps by judicial practice and criminal law scholars welcomed the important reason.

       Book in Italy has been regarded as a classic one, but in criminal law theory has a long history, school buildings in Italy, many of its viewpoints are still a say. Although the book has an objective introduction to the main ideas, concepts about that other academic ideas or relevant background and the main contents of this book, believe to help the readers to better understand the current situation and the basic spirit of the criminal law of Italy.

     

A, The basic category of the criminal law of Italy

 

A) meaning of the Italy constitution to the criminal law

The criminal law to deprive the citizen freedom as the main sanctions, bad law is undoubtedly the biggest threat to civil liberties, therefore, Montesquieu concluded that "the freedom of citizens mainly rely on the good criminal law" to the conclusion. How to prevent the abuse of legislative power limit lawmakers', is one of the important topic since the Enlightenment thinkers of the criminal law (careful readers can experience, how to prevent lawmakers abuse of legislative power, is the author of the book there is a chance to emphasize the problem). In order to adjust the means of specific penalty for this criminal law to show the difference between criminal law and other branches of law, can be said to be recognized by the scholars all over the world fact (unfortunately, this point has not to our country criminal law educational world attention). Starting with the analysis on Criminal Law means that the penalty, "are all directly or potentially limiting criminal liberty means" this conclusion, and this conclusion as the basis, to illustrate the "when a sanctions directly or potentially related to the deprivation of personal liberty, legislation is not arbitrary: only in the most appropriate, namely 'necessary' case, lawmakers have the right of criminal sanctions," master of Science in foreign criminal law article, is also not uncommon[3]. However, that restricts the constitution to the criminal law, emphasizing the constitution about the "'punishment', 'criminal responsibility' and the relevant provisions of the protection of personal freedom", "punishment" provisions of the legislation, "the practice of using punishment" "must follow the basic guidelines", but in Europe, especially the distinctive features of Italy the criminal law theory and practice. There are many reasons for this phenomenon, in Italy, in the final analysis can be said to have two. One is the Italy criminal law is developed in the era of fascist dictatorship1930In the criminal code[4]. After the war, although many obvious with fascist color clauses in the criminal code has been abolished or gradually modified, but memories of fascist dictatorship in Italy easily took the farce of Italians are deeply worried: interpretation or limit without strong democratic spirit post-war constitution on criminal law provisions of the content, it is difficult to guarantee the despotism do not use the framework of the existing body of criminal law. In addition to the original criminal law fascist color with the constitutional democratic spirit to be limited, ensure the special status of Italy's post-war constitution in the legal system of unconstitutional review system established, the highest legal status of constitution is no longer a on the legislative ethical constraints, or even cause the air vibration sentence words, but the legislative, judicial, administrative organ has the direct binding code, all charged with violation of the constitution law, decrees and government decisions, may be caused by the constitutional court ruled unconstitutional and lose effectiveness. Therefore, the constitution of Italy has in fact become direct origin has the highest potency of each department law, without any basis for criminal law to the interpretation of the constitution, can be said that there is no legal basis. This is the Italy criminal law experts say the constitution another root cause.

       Two.The legal principle of crime and punishment

       Second chapter from the book "the crime punishment legal principle", the original title"Il Principio di Legalita`", literal translation into Chinese, should be the" principle of legality "or" legal principle". On the principle of "legitimacy" of understanding, as well as the principle in the criminal law status, function and so on, Italy criminal law scholars have different views. On the principle of speaking, although Italy's criminal law circles say that formalism to the principle can only be understood, that the principle of criminal law includes specific, clear and definite, effect of time limited (i.e., criminal law is only applicable to the implementation of the behavior during and before the entry into force, is not back don't delay, in its failure after the fact) three interrelated principle of subordination. However, insiders claim as a substantive understanding of this principle can also There are plenty of people who (will understand the essence of crime of harmful behavior, to the society that make a crime according to the criminal law is not the legislature, but with substantial justice law view) (the "principle of legality" the essence of the reader. "Myth and reality: the principle of a legally prescribed punishment the connotation of the value conflict and the criminal law of our country due to the legislative choice", "modern law"1997The first stage). As for the principle of status in the criminal law, the criminal law of Italy academic circles also Public opinions are divergent., unable to agree on which is right. From the system point of view, the author of this book clearly belongs to the basic principle of criminal law principle of legality as global to discuss. However, there are different opinions views have quite popular: as in recent years and the author of the book eponymous Italy criminal law expertsF.Mando Vanni believed that the principle is the basic principle of cognizance of crime, and was regarded as the most outstanding criminal law experts in Italy after the warF. An Dong Li provoke emphasizes the principle is the basic principle of criminal law determines the origin of Italy. It is worth reminding the reader's attention is, although the relations between the problems in the legal principle of crime and punishment and the three on the right, the author of this book has unique incisive analysis, but the strict formalism author holds on the legal principle of crime and punishment on the attitude (as in analogical problem not only analogy, opposition is not conducive to the criminals also oppose analogy; conducive to crime people will not implement the principle of legality is centralized state, etc.) in the Italy criminal law scholars must not say. In general, except for the provisions for the defendant can apply analogy, Italy criminal law scholars generally think: whether it should be prohibited in the analogy is not conducive to the question, "does not have a is suitable for all ages and countries"[5]; in the "Prohibition of analogy between" freedom and democracy "no intrinsic connection", "analogy is good or bad, to see the judge thinking and judicial purposes, and fundamentally depend on the value of democracy there is no consensus and judicial independence and justice degree"[6]Or "depends on the relationship between citizen and government, historical tradition, the quality of judges, judicial habit"[7]Such a state of subjective and objective conditions; postwar Italy was still chose to adhere strictly to the principle of legality, prohibition of analogy method, due to Italy after the war factions (which may not have the concept of value unified) reality and they had decided the special cross history unique history and reality conditions. The Italy criminal law scholars have many reasons to the crime punishment legal principle limitations and the understanding of the analogy of tolerance, but most likely two. One is the Enlightenment thinkers as the legal principle of crime and punishment to maintain freedom of citizens most fundamental protection, came to power in Italy not only failed to stop the fascist dictatorship, but the Mussolini regime suppression of democracy, repressive tools; and did not adhere to the formalism of the principle of legality, the countries of Anglo American law system and more or less allowed analogy in a certain range within the country and Scandinavia, the protection of civil liberties but always walk in front of the continental European countries. Another force Italy's criminal law scholars changed views of the principle of legality, is the reflection for the practice of the trial after the end of World War II war criminals. Because of the war criminals in their behavior in the behavior is not illegal to defend the main reason, if in strict accordance with the concepts of criminal law in continental Europe, traditional, the legal principle of crime and punishment to formalism, it is impossible to carry out legal trial of war criminals. In order to avoid a repeat of the Nuremberg and Tokyo military tribunals for former Nazi and Japanese war criminals of the embarrassing situation,1950The European Convention of human rights "and"1966Years of "civil rights and Political Rights Convention" shall not be retroactive principle by stressing importance at the same time, clearly stipulates: not use this principle to hinder the punishment in violation of "civilized nations" "(" the European Convention of human rights7Section second) or "All countries"(" International Convention on human rights " Article15Article second) "crime recognized by general principles" (such as crimes against peace, Crimes against humanity)). In the face of the cruel fact, criminal jurist of Italy had to have been in the legal principle of crime and punishment is a deep reflection of st.. And in the Second World War, just near the end, on the European continent judicial and legal theorists have had to learn to use the common law, in Anglo American Law (balanceEquity) concept to instruct experimental conviction case. Although this experiment to end to the rational thinking of continental Europe cannot in practice in the specific operation experience accumulated in Anglo American law and ended in failure, the legal principle of crime and punishment but does not adhere to the formalism can protect citizen's freedom, in European countries also gradually become the consensus of a person with breadth of vision. Especially the Italy criminal law scholars limitations on the principle of legality has personal experience, experience is very profound. Is to adhere to the principle of legality of the author of the book also thinks, "but the only certainty is not enough to protect civil liberties, criminal standard one meaning" determined ", can be arbitrary and unreasonable product. In order to prevent the emergence of this dangerous, it was required by the most representative organ to make criminal law. It can be concluded that, in order to give full play to the crime punishment legal principle of guaranteeing the citizens' freedom of action, there must be a democracy, to be able to have a debate with those determined by punishment parliament."

       Three) the concept of crime

That the research object of crime in the theory of criminal law is only "the legal concept of" crime, namely the formal concept, is the author of the book basic viewpoint. But from the book with a lot of space to illustrate the various relevant criminal essence theory is not complete this, readers can see the essence of crime in the criminal law of Italy occupies an important position in the. In fact, with the great length in criminal law teaching material to discuss the discussion of the essential characteristics of a crime, the criminal law of Italy district is different from other non socialist countries criminal law a unique characteristic. The characteristics of Italy criminal law, from the history of numbers, is the main schools of modern criminal law is originated from Italy, and the creation of each school are cannot do without exploration of the nature of the crime are closely related; in terms of reality, because of Italy established the unconstitutional review system, any constitutional provisions of the criminal law not standard can be sentenced unconstitutional and lose effectiveness, is forcing the criminal law scholars in Italy have to think about the relationship between the nature and the constitution of crime to maintain the interests of the. In this situation, discusses the Italy criminal law theory of the nature of the crime, also started from the traditional crime boils down to "violation of the fundamental condition of social life", "violated the basic rules of" common "civilized life, has the serious social harmfulness behavior", "with the interests of the state and the need of oppositional behavior". Mainly in outside the law of the social ethics, moral, political field for a rational answer approach, appeared in the internal legal system, according to the basic value of constitutional safeguard, tend to define the essence of crime. The main representative mentioned brie Korah book is this tendency. This tendency is another main representative is slightly ahead of the author of this book is famous Italy criminal law (the bright younger generation Mando VanniMandovani ), he according to the constitution of Italy, for the crime he thought was a combination of substance and form, and can be used as the legislation, the crime of criminal judicial standard definition. In his view, "Italy constitution, criminal refers to does not have retroactive effect of the law the way with clear, objective way in the outside world, violations of constitutional significance value (or against the Constitution), from the reasons and psychological attributed to the body, because not commensurate with the value of damage and the non criminal sanctions, and to abstract and constitution to preserve the value of the adaptation, and specific behavior personality to adapt, humane and to serve the people and education for the purpose of penalty facts (behavior)". This definition is very long, but the translator believe: carefully taste this definition, the reader realize must not only is the essence of the problem how to recognize the crime. Interestingly, the same as the author of the book, in our country to become the general said, and began to have new content in Germany (Modern Significance of "" of "social harmfulness" refers to those social dysfunction phenomenon, or those that hinder or obstruct the modern social system operate effectively phenomenon "), with social harmfulness behavior and to generalize the essence of crime in Italy criminal law practice, and not many people agree with. Italy the most famous modern criminal law experts (with AnthonyAntolisei) had skillfully use binding words, "deliberately does not fulfill the contract (the tort), the extent of the damage is greater than stealing an apple or a toothless dog on the walk in the street (crime)", to illustrate the impossible with the degree of harm done to society as a division of general illegal behavior and criminal behavior standard.

       Four.Constitution of a crime

And our country criminal law educational world the crime concept and constitutive elements of crime is treated as two different criminal law in different category, theory of continental law system in crime, crime concept of logic to the formalistic analysis results. Indeed, as the author has pointed out, "when people turn to crime as a norm to consider, as a way to comply with legal facts into consideration, we must analyze different aspects of crime", "leave the analysis method in the theory of criminal law, cannot explain the crime"; but the author advocated crime three elements that constitute, namely identification in specific acts constitute crime, "first of all, the objective aspect of crime to analysis, to see whether it is consistent with the provisions of the criminal law of the crime (the essential ingredient of the specific provisions of criminal law in the typical facts or Japanese criminal law); and then, to see whether the implementation behavior with justification (illegal); and finally, to find out the special circumstances of the actors mental attitude and the existence of human behavior (i.e. can forgive sin or so-called 'responsibility')" theory, the dominant tendency of the theory in the criminal law of Italy sector can also be said that. But the translator here want to say is: the book critical or disapproving "unified concept of crime" and "two concepts of crime", scholars in Italy criminal law have considerable authority support. Such as the Italy criminal law "objective theory" of the main representatives, de do Yi M (Dettoil) on the firm belief that "crime is an indivisible whole", "people can say that crime have different 'hand', but these aspects like prism face, does not have the value and significance of independent existence". That crime constitution should only include "the subjective and objective elements" and "two concepts of crime", is a "three points and the concept of crime" as an equal. This theory not only has a long history in Italy (the theory as the main representative of Italy classical figuresCarrara A theory which, half a century earlier than Bellinger's crime), and also in the modern criminal law of Italy are also very authoritative revision and development, such as the Italy criminal law technical school (also known as the third school founder (Mancini)ManziniThe criminal law) and the realism school founder Anthony (heatAndonlisei) as well as mentioned by Mando Vanni et al. Incidentally, in the concept of crime in this part, the author on the subject of crime related organizations and enterprises is discussed, for us to solve how to identify the crime in the unit supervisor or the directly responsible personnel, this is our country criminal law educational world generally ignored, but has important real significance of judicial problems, which have great reference value. But the crime subject to our passive analysis, crime is actually the same person, and only the insurance talents is the passive subject of crime" To distinguish the crime object, the crime victims, the infringed (from crime=The passive subject), also have certain reference significance.

      Five) technology of criminal legislation of Italy

       Compared with any other country, the criminal law system in Italy on the whole has become an independent school feeling. The characteristics of a national criminal justice system, of course, is reflected in the content. But the current criminal law system in Italy, ifNo.Talk about the excellence of legislative technology, will be a big flaw. As everyone knows, Italy current criminal law is the product of Mussolini's autocratic rule came to power, this is likely to be the world's only one born of the fascist era, but still in the criminal code to continue the implementation of. If the code is not out of at the time that the criminal law should be separated from the political and moral law school hand; if not their legislative technical excellence can hold free criminal law tradition, anti cut the code absolutism; if not the code in the technology is still regarded as the criminal legislation in the history of a City insurmountable peak, it is difficult to imagine in the post-war democratic consciousness is very strong in Italy, the code of life can still continue today. In as far as possible not to jurists, judges to interpret the law. This legislation under the guidance of the concept, characteristics of Italy the present criminal law legislative technology can be summed up in three words: full, accurate, detailed.

       First, that is, the "full", does not mean the Italy penal code is a hodgepodge of cyst all criminal law; on the contrary, as the authors noted, against the large and all the code to include all criminal code legislation pattern, requirements in the criminal law only stipulates the hazard is obvious, and has universal significance for ordinary citizens of the criminal norm, is the main trend of Italy's criminal legislation. Therefore, here said the "full", does not refer to specific crimes in specific provisions of criminal law, but in the criminal law of Italy in the general provisions of criminal law theory, almost involved all has the explicit stipulation. In this regard, the penal code of any other continent in contrast, can be said to be looking at a mo. From the formal point of view, the criminal law of Italy General Co240A, Japan penal code (70Article three and a half times), Germany (Criminal Code79Article three times), than the French penal code (176) is a third. From the content point of view, if there are special provisions of the penal code for almost all elements of crime, the criminal law of Italy is likely to be the case in the criminal legislation only; many specific problems in general provisions of criminal law, such as the specific circumstances of the crime, not as causality, causal relationship in competition the body, coercion, passionate state crime, by accident or irresistible force caused by drunk, pathological drunkenness and drug poisoning, occupation crime, criminals, error, due to various subjective and objective conditions caused by error in the criminal law, criminal victim, the publications of the crime, in many countries are left to the theory of criminal law or by judicial practice according to the processing specific circumstances, but all in the Italy penal code clearly defined.

       Specification for the word "accurate" criminal law, is another feature of Italy criminal law legislation technology. About the characteristics, I think the careful reader in reading this book will have me experience. The provisions here only for the Italy penal code of territorial principle as an example. The penal code article3The provisions of the first paragraph: "in addition to exception provisions of national law or international law, the criminal law of Italy to all in their areas of people, local or foreign, binding". In accordance with the same problem1975German criminal law article3A (this provision: "the German criminal law applicable to the domestic all criminal acts"), the French penal code article113 2In the first paragraph (which stipulates: "in the Republic of China in the field of crime, criminal law applicable in France"), the Italy penal code word has two different: one is the Italy penal code in the provisions of the criminal law of the effectiveness of not using the universal "applicable" (ApplicareOr in english"Be Applicable"), but with the constraint ("Obbligare"); two is the constraint object is" all in their areas of people ", not like the other countries in the criminal law that is" crime "or" criminal behavior". Because of the "application" in foreign countries is generally refers to a rule applies to specific occasions (Note: in most languages, law "applicable", it is very difficult to make our jurisprudence in the generalized understanding), and "apply" criminal law of the main general can only be the judiciary; however, validity of criminal law is not only the judicial organs should execute region (applicable) issue of criminal law, but also, perhaps more importantly, people should comply with the problem in a region. If you want to include the validity of criminal law in second parts, with the "constraint" is "suitable" rather than. In addition, the criminal law scholars on the validity of interpretation of criminal law, that the spatial effect of Criminal Law refers to the problems of criminal law should apply to what people in what place, according to this logic, apparently criminal law "constraint (applicable)" should be the object of man, rather than a crime or crimes; on this issue, Italy the penal code words (i.e. "on......People, binding ") should also be other than criminal law is more" accurate".

       Provisions ", with" also is a distinctive characteristic of the Italy penal code in general. If the provisions of the relevant circumstances of the crime, the attempted crime in prose, the print crime, common crime, crime subjective mental and physical defects, minor, repeat offenders, occupation crime and sentencing of chapters in the circumstances of the crime, the criminal law of Italy in the third chapter "crime" in a separate section, with12The length of the specified circumstances. In this section, we see not only a variety of other sections of the ordinary not stipulated aggravating circumstances and mitigating circumstances of lists, can also see the error of cognition, the plot to understand error, the victim has a single plot should be how to deal with, having a plurality of the same nature of the plot should be how to deal with, at the same time with aggravating and mitigating circumstances, should be how to deal with the aggravating circumstances aggravating and mitigating circumstances reduce the limit and the subjective and objective circumstances of the plot classification and interpretation etc. Special provisions. The level of detail, academic papers of other countries about the circumstances of the crime I am afraid it is difficult to achieve, in legislation may is more unique.

 

Two, crime in the penal code of Italy

From the content point of view, the most distinctive Italy criminal law system in part may be related to the crime form (Le Forme di Manifestazione di ReatoRegulations. And our country criminal law educational world that will form of crime only understood as an intentional crime in different development stage the standstill, Italy criminal law scholars think: the crime should be general provisions of criminal law in the third chapter, including Italy ("crime") in the specific provisions "of the plot of crime", "crime the attempted", "crime of competing" (which should be regarded as the crime situation) and the fourth chapter ("crime and the crime person") with special section of "criminal cooperation" (i.e. "in Chinese criminal law complicity") four cases. In this issue, I think the most should cause our attention, not the Italy criminal law scholars divided on this issue (such as the author of this book is that the crime of competing or "crime", is a circle in the application of law, crime and punishment and cannot accurately positioning problem), but in these issues, Italy criminal law and legislation compared with unique content.

       A) the circumstances of the crime

In the circumstances of the crime problem, Italy criminal law has three characteristics. First of all, the criminal law of Italy will "plot" is divided into two types: one is based on the penalty can be located according to the proportion of increase, reduce, exemption from punishment shall be prescribed separately or legal punishment plot in the basic crime (although according to these plots of the penalty which may not exceed the range of legal punishment, which may also be equivalent to China's criminal law theory of heavier or lighter punishment, but under the representation method, there is no better book will not have the too accurately translate as "aggravating" or "reduce" plot), this kind of plot except for some scattered in criminal law general and specific provisions, mainly refers to the concentration of provisions in the criminal law of Italy in the third chapter on the formulation of the general principles of the provisions "of the plot of the crime" in the section. There is a class of complex mainly refers to the criminal law of Italy in the general provisions of chapter fifth ("the penalty to modify, applying and removing") in accordance with the provisions of the plot. The common point of the two is that they only affect the severity of the sentence, but according to the former judge may in the legal punishment amplitude determines the actual applicable penalty; and according to the latter, the judge only right within the range of statutory penalty considering the specific sanctions. In Italy in the theory of criminal law, is generally believed that only the former is the real circumstances, and the latter is called the "impure plot".

       The plot in Italy's criminal law has second features: in the application of multiple aggravating or mitigating circumstances, have "incremental" or "decline" nature of penalty increase and reduce. For example, a person to commit theft, this should be3Years in prison. However, if the perpetrator's theft is to hide another crime, and the victim's property caused serious losses, so the theft behavior is Italy penal code article61Two common aggravating circumstances in article second and article seventh provisions. If the two aggravating circumstances and should be according to the maximum amplitude of the aggravated punishment (that is, it should be another 1/3 episodes), so the first sentence is aggravating circumstances should be increased1Years, and been second aggravating circumstances aggravate the sentence is1Years on the other4Month. In other words, according to the method of calculation, the implementation of theft of a prison shall be5Years on the other4Months, rather than5Years. Because, second basic sentence plot has not3Years but4Years.

       Italy penal code article62-2Article about the so-called "general mitigating circumstances (i.e., the law does not clearly defined, but the judges decided according to the case of aggravating circumstances)" the provisions of the criminal law of Italy, can be said to be the "plot" third features. This article, according to the specific circumstances of the case, the judge has the power to decide a lighter punishment plot in law outside the plot. Italy1889This year the penal code has similar provisions, but in that strictly limit the discretion of judges fascist background, the provisions in the1930Cancelled years punishment code. In order to unreasonable legal principle of crime and punishment in the form of the relaxation, the judge can better according to the case specific information to determine the proper penalty, after the fall of the fascist regime (1944Years) in Italy criminal law has returned to this provision. In Italy by the constitution, the provisions of substantive equality was given help to realize the constitution, the criminal responsibility of personal significance.

       Two) attempted crime

Since the glossator medieval Italy was the first to use"Cogitare, Agere, sed non perficere(plot, action, unfinished) "summarized" attempted crime (ContatusSince the concept of "), attempted crime should be punished has become the national criminal legislation practice. However, how to identify and how to punish the crime of attempted, criminal legislation of various countries have two kinds of tendency of subjectivism and objectivism. From the crime as the subjective malignant embodied subjectivism criminal concept, legislation adopted the theory of subjectivity to attempted crime is defined as "any implementation or contribute to the implementation of crime for the purpose of behavior", all reflect the offender will be (danger or behavior of human behavior), including most not worth mentioning the preparatory behavior, are set for the attempted crime categories of behavior can be punished. In today's world of criminal law, Norway, Denmark, Iceland, Canada and other countries as a representative of this kind of criminal legislation (such as the Canadian Criminal Code article24Paragraph 1: "intentionally with crime, for the crime for the act or omission, whether in environmental crime when possible, guilty of attempted offense"). To adopt objective as attempted crime standard country, usually with the real danger to society as a theoretical basis for punishment of the attempted crime. In order to have an objective standard of crime that clear, since the1810The French penal code, the countries all over the world (especially the countries of continental Europe) generally will "the beginning" ( "UN commencemente d 'exe`ution"  - Our country is usually translated as "the crime of" attempted behavior as the difference between the boundaries), penalty and non penalty of preparatory behavior. But, what is the crime "the beginning", how to determine crime "to start" became so that all criminal jurists rack sth., but unable to reach a consensus, even by some criminal jurists (such as GermanyGeyer) pessimistically that "can not solve the fundamental problem".

       In the face of all kinds of crime to theory cannot clear division of preparation for a crime and the practice situation, Italy1930Years penal code drafters, decided to develop in the legislative cases, abandon "began to" act as the traditional model of point penalty of the crime. They integrated the Italy criminal classical school in succession, "(means) match" (Criterio d 'idoneita`"(behavior) and direction (clear) saidCriterio d 'univocita`") on the basis of this, draw two of preparatory behavior and the behavior of the rational kernel of the theory, in the criminal legislation were first created in the" proportionality "behavior and" behavior (direction) definite "refers to as the legislative mode of the abortive behavior objective standards, Italy attempted crime system become an independent school in the national criminal system.

       On objectivism is the main theoretical basis of the system of Italy Italy attempted crime, attempted crime system does not belong to "hitch" as criminal attempt the necessary condition of the "French School", as well as Italy punishment of attempted crime problem, have clear discussed in this book, the translator in the "on China's criminal law scholars points the Italy criminal law (see" misunderstanding "foreign law"1997Fifth) have done some analysis. Therefore, here mainly to introduce the reader briefly in Italy's criminal law crime in several characteristic elements of.

       According to the Italy criminal law circles, except the factor does not have specific provisions of criminal law all the elements of this negative, attempted crime was also asked the objective aspects of the "proportionality", "clear" and the subjective intent.

       Here the so-called "proportionality", refers to the attempted behavior has the property of real danger to be protected by law, or "the possibility of harm" obvious, is a can determine the damage "attitude attempted action itself displayed". Cognizance of this proportionality, three points need to draw the reader's attention. The first point is worth to draw the reader's attention is: proportionality here said, can not be understood as the abortive behavior actually has the force causes the crime result, but according to the various conditions recognized by subject in the implementation of the last move, the crime of the (very) possible judgment. As the author of this book points out, "if according to the actual situation behavior after the end of the judge, can draw any attempted behavior does not have the proportionality conclusions". The second point is the reader's attention is, proportionality is the behavior of crime, the object is not a method judging people's behavior ("Mezzo"), but the specific action (" behaviorAtti) ", namely" behavior in a series of specific actions of specific experience in specific time (for example, shooting action, is through the aim, position, and the behavior of human distance, a loaded gun range, a series of moves out)". Because the "method", "match" may arise from an abstract point of view, but the specific circumstances "disproportionate", or the opposite. For example, in the abstract sense, "murder is and proportionate means of shooting others"; but in specific circumstances, such as the victim in the range, it is no longer "commensurate" murder. Also, for people to drink sugary drinks, if the abstract view, may not have the properties of a killer, but for people with diabetes soon coma drinking this drink, is a fully commensurate killing method". Therefore, "only to specific action as the object, it may be attempted behavior defined in the real (instead of assuming or potential risk basis)". It is for this reason, the provisions of the Italy penal code relating to criminal attempt to replace the "action"1889Years penal code used in the "methods" this one formulation (Italy penal code the correct term is used, here and remarkable). In the symmetric behavior, third points should ask the reader to note is: criminal law and Germany, Japan and other countries or judicial practice different, according to the provisions of the criminal law of Italy, "impossible criminal attempt of" (such as dead as the object, the aspirin when the poison killing attempted behavior) is not only the not punishable behavior, and is different from the crime criminal law system. However, the Italy criminal law scholars tend to this kind of crime to understand a form for the attempted crime, without penalty to the attempted (but may take security measures) reason, is the objective reality does not have the property caused by dangerous match against the interests of law. The reason that has not been implemented in the instigator or criminal conspiracy not punished, people also use this word to explain.

       As the attempted crime set second conditions "required for clarity",The Italy penal code article56Regulation "to clear the way to commit a crime", Italy criminal law scholars have two very basic understanding. The subjective understanding of the provisions of the penal code provisions that, the purpose is to set up the requirements that attempted, prove intentional crime exists. But Italy's criminal law circles say that, legal here to talk about is the abortive behavior "mode (Modo") (Note: not" method "), since the only forms of behavior are the objective behaviors, so the law should be the objective nature of the attempted crime. So, the abortive behavior "clear" to "should be understood as the behavior of people, has been the implementation of the act, must be able to objectively show the behavior of human actions, obviously has the property of" the act of committing a crime, have displayed or attempted behavior the behavior in the completed crime possibility. According to this understanding, preparatory acts of those pure (such as murder and buy a gun, as long as the behavior itself) in the objective reality is not the implementation of dangerous criminal has the (possibility does not include the completion of the crime), should not object belongs to the punishment; but those between the circles with elements in specific provisions of criminal law the behavior and purely preparatory behavior, which is called"Atti pretipici"(such as murder and ready to fire), if the objective nature is" clearly points to the crime ", due to the attempted crime, must be subject to criminal penalty. However, adhere to this view people generally think, here said the "clear, action oriented" is only relative significance, namely the "clear" to other evidence to prove by means of behavior. Because, from a practical point of view, by the abortive behavior itself can prove "action to clear" situation, if any, is extremely limited. (it is in this sense, they say the Italy criminal law has abandoned the traditional criminal law to "act" at the beginning, as the distinction between non penalty of preparation and as attempted crime behavior standard legislation mode.)

       Only the subjective elements of crime establishment is the intentional, and this can only be accomplished crime intentionally intentionally, deliberately rather than "trying" to commit the crime (in the vast majority of foreign languages in the word "crime", if the literal translation may be "attempted crime") is a Italy criminal law said. But how to understand as a deliberately subjective attempted crime, especially in the indirect intentional whether the attempted form problems, regardless of Italy's criminal law and judicial practice, there is no unified understanding. The dominant opinion in the judicial practice, the intentional crime all have attempted forms, indirect intention is no exception. Because, since explicit attempt to have the objective nature, if the perpetrator has clearly foreseen, their behavior may cause specific hazard results and the pursuit of their goals, and have accepted the risk the consequences, even fruit actually did not occur, there is no reason to exclude the act has a "clear" (as in, somebody torched a seemingly uninhabited buildings, had foreseen there may be someone to sleep, and that if he set fire to buildings, inside the sleeping people may be burned, will indeed be sleeping, in the building. But the people because the firefighters arrived in time to be saved). But the dominant theory seems to be the author of the book's point of view, that is deliberately only attempted crime is directly intentionally, clear legal provisions of the act, but also means that the behavior people have clear purpose of the crime subjective, so don't approve of indirect intention has the attempted form practice, even on this approach is not conducive to the equivalent of criminals.

       Three.Common crime

       In addition to the attempted crime, the provisions on joint crime in Italy criminal law occupies a very special position in the history of the world of criminal legislation. From the style, although the Italy criminal law scholars will jointly crime is a form of crime, but the Italy penal code related to common crime is not listed in the general provisions chapter third "crime", but to the fourth chapter of "crime and the crime person" name (the offender and be crime in the criminal law in a single chapter, is also the Italy penal code features). Chinese version of "complicity" one word is not in the strict significance and Chinese corresponding italian"Compartecipazione al reato", but"Concorse Di persone nel reato"(literal translation should be" Co opetition "crime in the translation of the expression). Of course, the system of joint crime criminal law of Italy the biggest feature is its unique content.

       Strictly speaking, in China, the former Soviet Union and a few other socialist countries in the criminal law, most countries in the world of criminal law just about common criminal provisions, provided no common crime. According to China's criminal law circles, all countries in the world to the common crime can be divided into two modes: one is according to the common crime division of the common criminal into practice, the organizing offender, abettor and instigator of, two is based on the role of common crime will be common criminals as a principal, accessory. The former is conducive to the conviction, is not conducive to the criminal's responsibility correctly; the latter to sentencing, but the correct determination of joint crime, but there are certain difficulties. But the current criminal law system in Italy related to common crime (person) is specified features: it is not common crime classification, and simply states "when the common people to participate in the same crimes are punishable by law, for the crime punishment to which each person......"(the Italy penal code article110A). Provisions of the Italy penal code relating to the common crime, in fact is widely adopted in criminal law system in the abandoned first according to certain standards of joint offenders classification, the traditional method and then determine the criminal responsibility according to the type of joint crime in the legislation, set up the basic principles of "to each offender should be follow the" equal treatment "common crime criminal responsibility at".

       This new legislation mode of the criminal law of Italy, the Japanese criminal law scholars summed it up as "includes the principal concept", and the understanding to independent theory as the foundation, will implement the "as the reason to the crime of" people as the "principal" criminal law "(see Kimura Rji" the dictionary326 328Page). The Japanese criminal law the provisions of the criminal law of Italy is not exact understanding, if Italy was known for explaining the common crime criminal liability according to the "equal reason" words (i.e., each joint crime of crime results occurred with equal force, so every reason a common crime should bear criminal responsibility equal), Italy is the current criminal code drafters to explain the theoretical basis related to common crime. However, the criminal law of Italy today's scholars, in spite of the punishment of joint crime theory according to the question is no unified opinion, but that "the same reason" (or "independent") cannot explain the Italy criminal law system of joint crime, can be said that the basic consensus.

       Here it is obviously not possible to Italy criminal law scholars explain the common crime theory are discussed in detail, but one thing is for sure, in various interpretations of joint crime theory, the author agrees with the "multiple constitute the main elements of said" (from the back of the analysis we can see, this is actually a compatible with independent and the attribute theory), no doubt in that position. The translator tries here to this theory as the basis, a brief description of the characteristics of conditions related to common crime in the criminal law of Italy.

       Although the Italy criminal law scholars think, their criminal law does not give a common crime, but the vast majority of the Italy criminal law scholars under the Italy penal code article110Provisions, launched a joint crime refers to "the common people to participate in the same crime" conclusion. According to this definition, constitute the joint crime requires the following conditions: (1A plurality of main ()2Committing the same crimes (;)3Participation behavior (;)4Intentional participation).

       The so-called multiple subject, refers to the act of joint crime is conducted jointly by a natural person. In addition to legal person cannot be the subject of joint crime, the criminal law of Italy circles say that, "Multiplicity" the body, "is not equal to every subject must be guilty or other personal punishable condition. In a number of natural person, if someone does not have the capacity of criminal responsibility, or has no subjective fault, or be forgiven for reasons, or other obviate penalty for personal reasons, does not exclude the common crime establishment". Although the scholars in the criminal law of Italy also has the support of non criminal responsibility person and body completely by deception, forced to participate in a crime is not the common crime, because in this case only using these crime "indirect" is true of crime. However, no criminal responsibility can be the subject of joint crime, in Italy is dominated by said; even completely by no responsibility to implement crime can also be called the common crime in criminal law point of view, Italy is also quite popular. It should be noted here that, in the pure status crime (which only may be implemented with the identity of the person of crime, namely, the Japanese criminal law called "self implemented offense") of common crime, with the identity of the person must be the direct implementation of crime behavior. At the same time, the subject, not all subjects have a crime of indirect principal, so-called "" (that is, by the behavior of others to commit the crime person), also belongs to the category of joint crime.

       "The implementation of the same crime, common crime" refers to all participants at least one person acts "have crime must set up the basic objective elements". Due to the objective conditions of the attempted crime is the objective aspect of the crime condition of at least, crime, therefore, "said here have the objective elements of the basic elements, is a must have at least attempted crime". Simply speaking, only in the objective into the attempted crime stage behavior, may constitute a crime. In this issue, the Italy penal code explicitly incorporates the subordinative position, common crime attempted the clearly defined "(Tentativo di concorso) (that is, many people attempt to commit the crime together, but did not develop to the attempted crime stage behavior) "and be instigated behavior has not entered the stage (including the attempted instigator of abetting the crime and not the implementation is refusing to be abetting abettor), do not bear criminal responsibility. This not only with the clear provisions of such acts constitute a crime in China, Germany and most of the countries of Anglo American law system legislation cases be quite different, and this problem is not clearly defined, compared to the judicial practice and legal theory to solve Japan's system of joint crime, has become an independent school feeling.

       Third conditions of common crime in Italy criminal law established a "joint participation behavior", this is actually how to understand the Italy penal code article110Stated in the meaning of "participation". But in the cognizance of joint crime is established and defined core issues of common crime in the scope of the problem, but there are relatively vague provisions of the Italy penal code. According to the original intention of the legislators, the "joint participation" should be those of the crime (including crime results) with effects, or refer to those without, crime will not happen behavior (i.e., in accordance with the decision of the causal relationship between the "conditions" can determine the causality and crime implementation behavior). However, at present in Italy that the criminal law in the ruling idea: the criminal law draft 'point of view, on the behavior of the common crime too severe; according to this understanding, many in objectively on crimes, but the implementation of crime is not the decisive action (such as not being committed to implement the helping behavior the actual use of those; implementation of the crimes, not the necessary help behavior), will be left out of the common criminal acts outside the category, the perpetrators of such acts to escape the legal sanction should bear. Therefore, today, people generally believe that, "the core conditions of participation behavior" of a common crime, should understand the common participation of crime "objectively 'power'". Its concrete content is: "in the crime determination formation stage, preparation stage, implementation stage implementation can decide or, or to harm result implementation behavior". This is the Italy criminal law opinions most people support, in the new criminal code of Italy agency legislation framework of article26In the first paragraph has explicitly adopted by. The so-called conducive to crime the behavior, this section also further stipulates that "only refers to can realize a harmful result more likely, easier or more serious behavior".

       In addition to the above objective conditions, Italy criminal law and judicial practice are considered (not clearly stipulated in penal code of Italy): the establishment of joint crime also need a subjective factors. However, what is the subjective content? But people have different understanding. According to the Italy criminal law educational world the dominant view, we can sum up the subjective elements of the provisions of the criminal law of China several different characteristics.

       (1According to the Italy penal code article)113The provisions of the criminal law of Italy, the scholars think that the criminal negligence crimes have the form of common crime, also admitted that some (a) intentional offender and others (a) contributory negligence of subject and form of joint crime;

       (2) the intentional crime, joint crime requires the participation of human communication are common intentional crimes. But because of the people and of non criminal responsibility person can become the subject of joint crime, the joint crime intention of the establishment, not necessarily requires each participation person has the crime intentionally, so "one-sided accomplice" is a common crime form;

       (3) should bear criminal responsibility for the joint criminals, common content is not equal to the intentional joint implementation of the same crime, according to the Italy penal code article116The provisions of the first paragraph: "when the crime is different the hope on a common behavior of crime, if the result is his act or omission of the results, he is also responsible for the crime". "According to this logic, an outside of larceny. Man, it may assume responsibility" for the criminals to rape the hostess in the room, but the judicial practice that, "if the common behavior person liable to the one he didn't want the crime, the crime results must be is the result of behavior person to anticipate (therefore, there must be some form of negligence, even if the fault is not the real meaning of criminal negligence") (this approach to Italy's Constitutional Court reluctance to found a point that Italy penal code article116Not the reason);

       (4) that the subjective of the crime, pure status crime (such as incest) crime, other joint criminals must have some knowledge of the specific identity of the people. As for the impure identity crime (such as crime of corruption) common crime, according to criminal law of Italy No.117The provisions of article, regardless of whether the other joint participation with the identity, or whether it is aware of their participation in the crime should be a participant's individual conditions or identity and change the properties (such as theft by taking advantages of the civil service to become the crime of corruption), all should be according to the identity crime (sentences when there is a difference).

       Common crime in the criminal law of Italy, there may be necessary to explain is: although "of each joint offender should be treated equally is a basic principle of decision should follow the common crime criminal responsibility of)", but "not equal to equal treatment to each joint offender should be exactly the same punishment"; in contrast the judge, must be based on the specific case and the penal code article133The provisions of the relevant sentencing provisions in the criminal code, and a series of suitable plot in the common crime, specific decision of each offender should bear the responsibility.

       Four) the concurrence of crime

Italy penal code article71 - 81A will"Crime competing "(i.e., the number of crime) defined as a form of crime, in the national criminal legislation, is probably the one and the only one example.In terms of content, in addition to the provisions of the situation is very detailed, the characteristics in the aspects of the criminal law of Italy is not outstanding, in simple words can be summed up as following:

      1 Italy's criminal law circles say that, "special law is superior to common law" is the only principle to solve the problems of overlap of articles of law;

      2 The punishment on the issue, Italy penal code used is limited and a principle. However, when the number of the crime shall be sentenced to life imprisonment, and Science6Months to3Years of day in solitary confinement; when the number of crime is a crime shall be sentenced to life imprisonment, and the other a penalty is added5Years or more in prison, shall be sentenced to life imprisonment and Science2 18Month day in solitary confinement; if the competing in several place24Years or more in prison when the crime, should apply to life imprisonment;

      3 Division of various articles, violates several charges, or repeatedly violated the same criminal behavior, should according to the principles of processing constraints increase, which should be "the heaviest penalty punishment of crime number, add the penalty 1/3" punishment, punishment can be equal to the actual application, but shall not exceed the crime the sum of penalty should be;

      4.1974Years later, the criminal law of Italy will be continuous offence is defined as "the same intention of crime number an act or omission on, even in the different time, the implementation of repeatedly violated the same rules or provisions of the people", which not only changes the world mainly according to the objective behavior to define continuous make traditional practices, but also the dominant the several dissimilar crimes for implementing in the uniform crime purpose behavior into the scope of continuous offence, it is a kind of innovation of Italy criminal law.

 

 

The formation and development of criminal law theory, Italy three

 

A) the classical school: Italy modern criminal law formation

The criminal law of human society is the oldest law, "also has a long history with human society". But the Italy criminal law scholars think, criminal law system in ancient China, no matter in ancient Rome law, the Germanic law, or a medieval city-state law, canon law, influence on the modern criminal law can be said to be very little. Fundamentally speaking, is the modern criminal law18Product century bourgeois enlightenment.

1The medieval annotation school

Nevertheless, in the history of modern criminal law about the various specific systems, Italy criminal law scholars first mentioned often Italy medieval law interpretation school work. Approximately in the ad1000Years, the classical annotation School of law in Italy began to carry on the excellent tradition of ancient Rome jurist, from a practical point of view to explain the spirit of law of Rome. Their work has greatly promoted the spread of Rome law, the enlightenment movement before Italy became European jurists pilgrimage center. At about15Century, focus on annotation jurists in middle ages of Italy, from the beginning of the criminal law interpretation in ancient Rome law (the so-called"Libri terribiles"), transfer to solve criminal problems in reality, proposed a series of modern criminal law system frame basic view. It is because of their brilliant contribution on the formation of modern criminal law have made, Italy won the "China and the cradle of" criminal reputation. In the criminal glossator medieval, most notably Da Gan Dino (Alberto Da GandinoLuo (KT) andGiulio Claro). In the former13Century wrote the first western history of criminal law criminal law "(monograph on evilTractatus de maleficiis"In the latter)16The left set case assembly was research school notes together ("Receptae sententiae) ", many of the basic category of modern criminal law (such as no behavior that is no crime, criminal responsibility is the premise, crime punishment is necessary, of crime may implicate, began to act as a point of punishment of attempted etc.) volume" criminal practice in the book (FifthPractica criminalis") have a clear statement.

2Criminal thoughts enlightenment

1764Years, by Montesquieu Rousseau, the influence of Beccaria published anonymously "crime and punishment", marks the development of Italy criminal law thought has entered a new era. A series of criminal law the principle proposed in the previous experience foundation, caused intense echo in the whole western, a strong impetus to the reform of criminal law in the world. In Beccaria "crime and punishment" published20Years later, Italy is a famous jurist Ferran Teri (enlightenmentA·Filangeri, 1752-1788) published its famous "legislative science". The book named "Criminal Law (volume thirdDelle leggi criminali"), Ferran Teri proposed the penalty system and the classification of crimes in criminal legislation ideas, new system in which,"19Criminal law lays century countries to develop the basic blueprint". At the same time, Ganuo (M. Pagano, 1748-1799), the first to retribution concept accurately prescribed punishment is the basic requirements definition and punishment crime adapt[8], and puts forward the penalty crime "(anti motivationContrario motivo) "the famous judgment, provides the theoretical basis for Feuerbach's theory of psychological compulsion. Rome Yinuo division (laterRomagnosi 1767-1835) the first in the history of criminal law take the social defense is the only purpose of criminal law, the first school of criminal sociology precedent.

Three.Italy criminal classical school

In the view of the criminal law of Italy scientists, although Beccaria and their contemporaries was the founder of the modern criminal law theory, but they are only in the criminal law of the enlightenment, which rise in the19Century Italy criminal classical school masters of the criminal law, is the true sense of the. Because only in their hands, modern criminal law complete and detailed system before it was initially formed.1859Years, founder of the Italy criminal classical school and the most outstanding representative Karl Lara (F. Carrara?-1888) published the "Outline" in criminal law. In this part of Italy monument become modern criminal law system based on the classic work, "the great jurist dedication is not only based on the first real science was the criminal law theory best carefully constructed the whole system of criminal law and the crime of," is the first in the history of the criminal law theory from the body. On the analysis of the elements of a crime, and put forward the theory of constitution of crime. It may be necessary to explain is different, and then with a number of "imperial" color of European criminal law theory, the criminal classical criminal school hymn Italy theory is not realistic in defense of the rationality of criminal law system, but the product in a rational manner to criticize the reality of criminal law system. In their eyes, division of criminal law theory not only "general" and "special provisions", the difference should be "scientific theory" and "practice". But the criminal law the real object of study, "not those who like the legislators in the code of law", but "written in the eternal truth in rational code", is the absolute rule of criminal law must be obeyed in reality "". Italy1889In the criminal code[9]Italy can be said is the concentrated reflection of the criminal classical school theory system. It is because they have to the penal code making Italy the area of critical attitude, so that the code in the content and legislative technology, criminal law regardless of relative Italy experienced, or relative criminal law at that time most European countries, has the very big progress. In an effort wide and criminal policy guidance, Italy1889Years of criminal law abolished death penalty, stipulated the parole, the sermon, and participate in the public service of short-term freedom penalty alternative measures, in accordance with the "object of crime (Oggetto giuridico di reato"As the standard for the crime) classification system, reduces the maximum statutory penalty between crime and punishment of the minimum gap, in the aspect of the crime attempted, common crime, punishment principle also made a more reasonable than the previous provisions of criminal law. "The superior legislative technology" is "by the evaluation of Italy domestic and foreign high".

Two)Law School: the birth of Italy technology in current criminal code

A)The rise of criminal positivism school

1872Years, Italy philosopher Povio (G. Bovio) published the "Criminal Law (Critical EssaysSaggio critico del diritto penale"A Book), the criminal classical school is based on free will, moral responsibility as the core, the general prevention as the main purpose of the view of the criticism of the system, for the positivism criminal school started in the rise of Italy. With the "criminal" Cesare Lombroso[10](1876Years), Galofaro ("criminology"1891), Phil "sociology of crime" (1892) have been published, emphasizing the physiological, psychological or social factors are the fundamental reasons for the crime of criminal law, the core ideas from behavior to the actors emphasized according to the characteristics of physiological, psychological and behavioral take special precautions to the criminal positivism theory of criminal law and finally formed with criminal law thought the world influence. In this trend, Italy was Minister of justice Tara Moore (Mortara) in1921The Committee put forward the draft was the famous ""[11]. The traditional schools of criminal law theory as the foundation of the draft, if in accordance with no breakthrough1889Years of penal code, basic mode, then in the general part can say basically reflects the main idea of criminal positivism school (as in the crime criminal responsibility in part to deny, deny the difference that crime; attempted crime and accomplished in the penalty provisions of the absolute or relative Indefinite Penalty, to the body the degree of danger crime person as the basic standard sentences the weight etc.). Was due to the strong criticism from all sides, the draft did not escape the fate of put it away unheeded.

Two)Technology of law school victory

In Italy, in sharp contrast to the criminal classical school and criminal positivism school, not like De Xin, old two parties as to close up to each other, both the mutual fusion for the outcome, but caused third school "(independentScuola terza"To play the leading role in the field of criminal law) the situation. The third school, also known as the "legal technical school" rise, formed in the century20Age. The main representative Arturo Locke (Arturo RoccoManzini () andV. Manzini) et al will not only as a criminal positivism school based anthropology, criminology, criminal policy "can only be demoted to pollution law pure" talk; and the pursuit of the classical school of "rational, natural, the ideal method" is also a scathing critique. They think, the national law is the criminal law experts should study only to "strict religious piety be like" of, in addition, neither should admit, also may not have any "pure rational criminal law". The Law School of technology contribution to the criminal law is mainly manifested in three aspects. One is the "criticism" and emphasizes that only real Chinese formulated by the law is the science of criminal law the main object of study, boundaries and in Italy the first time in the history of criminal law clearly defines the criminal law and natural law philosophy, Criminology and criminal policy science; two is the first use of criminal law norms of strict logic analysis in the field of criminal law, which greatly enriched and improved the Italy traditional crime constitution theory; the three is based on the use of the above methods, the basic concepts of criminal law itself as the research category of criminal law from the independent, and establishes the concept system, the integrity of the criminal law. However, they "abandoned since the enlightenment exploration 'rational', 'ought to be' the science of criminal law, criminal law and the traditional" from history, politics and sociology, criminology, and even foreign criminal law between the flesh and blood ties, "the criminal law into the 'form' of science". Technology of law school regarded the law as lifeless dogma, that "no law jurists put right", "criminal law should not discuss the political foundation of criminal law or propose solutions for social problems". The reality China family law is the best law emphasizes the supremacy of state theory, the current criminal law clearly than critical, must in theory between the right and wrong of the classical school and the positivism school more adapted to the fascist state despotism political need. So,1922Took years to Mussolini's fascist Italy, third school naturally in Italy criminal law occupies the absolute dominant status.

Three)The birth of Italy current criminal code

1925Years, the main founder Arturo Locke law school (TechnologyArturo RoccoProfessor) established a commission, started the new criminal code drafting. In consultation with the parties concerned after the Council, the Minister of justice Alfredo Locke (Alfredo RoccoThe committee draft) made the last modified.1930Years10Month19This day, known in Italy as "penal code, Rock code" the official promulgation, second years7Month1This code into operation. The fascist of transport and health of the penal code, will inevitably have a strong absolutism. As in general to provisions of the death penalty, increase the punishment, to reduce the application of non custodial penalty, discretion, strictly limit the judges, security measures to the presumption of personal danger as the basis and applicable; in part increased banned strikes, punish all kinds of thought crime etc.. However, emphasizes individual freedom, against judicial tyranny thought, is the excellent tradition since the enlightenment in Italy criminal law, it shall not be applied afterwards method, is not a crime, the crime punishment legal principle basic content without law provisions[12]The code has been retained. Because the party legal technology of legislation value, the law on the crime of basic factors, various forms of crime, crime of aggravating and mitigating circumstances are of any national criminal law are more detailed, clearly defined, and the code in the common crime attempted crime problem, the upper pole zone originality regulations, and reflect the criminal positivism school advocates the security punishment system, probation, judicial leniency system, the code has become one of the most influence of penal code of criminal law in the world history of.

Three)The value from the technology development: after the Second World War in Italy criminal law

A)Technology of Law School of embarrassment

After the Second World War, there are two problems make the criminal law scholars of Italy is facing a very embarrassing situation. They are in the legal theory system of criminal law under the guidance of carefully constructed, not only in macro sense unable to adapt to the needs of the rapid development of the society, and even the field of criminal law, the people's urgent requirement of the punishment of the fascist war criminals requirements incapable of action ("because according to the principle of legality, fascist criminals act does not constitute a crime"). The two is a series of international documents (e.g.1948Years "on the Universal Declaration of human rights",1950Years "the European Convention on human rights" etc.) and European post-war constitution the provisions on basic human rights cannot be violated, so pay attention to humanity, advocating "the spirit of natural law" and other concepts have their own law foundation, and emphasis on the empirical method first, then deny that criminal law has any philosophical foundation, refused to legal technology school all principles on the criminal legislation guiding role, in theory, they inevitably fall into stultify oneself.

In order to get rid of this awkward situation, Italy criminal law scholars have tried to abandon the traditional legal technical school, equity in the Anglo American legal system "(to borrowEquity) "concept, to resolve the conflict between law and reality. But like other continental European countries, advocated "real law is the external form, and has only a secondary meaning" concept, as well as the conflict law through "equity" feeling "certainty" and "justice", "to achieve specific justice" specific cases in the practice, in Italy in criminal law theory and judicial practice, only flower briefly as the broad-leaved epiphyllum. Investigate its reason, besides the common law that the theory is not clear, the unknown channel empiricism and natural law "equity" concept, to a statute law expressly provides for the basic logical inference of syllogism by continental law system countries, there is a kind of "external, legal thinking" is very difficult to accept. In contrast to the Italy after the war, the political power seems to be more decisive role of.

Due to the core role of the Communist Party of Italy people in the anti fascist struggle, which became a Italy national life play a decisive role in the political power of the Communist Party, in effect, Italy was a "individual based liberalism, emphasize the collective interests of the Marx doctrine and the emphasis on social morality of the Christian faith. Ideological conflict with each other, mutual compromise, mutual compromise" constitution. This department1948Years1Month1The date of the Constitution (Italy constitution) Italy will be defined as neither capitalist, and non socialist "is based on labor Democratic republic"[13]. Due to "discuss fear" philosophy and social foundation of justice, humanity, the criminal law, will make Italy the "regime of unknown nature state" to "the essence of socialism oriented speech", in general tend to the criminal law of Italy conservative circles, "after a brief opening, the criminal law of Italy quickly with their research objects, research methods and research content to be closed up" himself, eventually returned to national legal positivism and legal technology school road.

In Italy after the war all required current criminal law under the new constitution reform deeply imprinted, fascist tyranny color very strong, making the new criminal code calls, do not seem to be caused due to resonance in Italy criminal law. Perhaps because of the Italy1930The criminal code legislation technology superb preference, some criminal law scholars famous or turns to "the Rock code formalism of technical analysis, autocratic composition" code to minimize, or say without mincing words that "the original code of the legal principle of crime and punishment, prohibited retroactive principle, criminal law and emphasizes the opposition the crime object of legal content, are the traditional liberal criminal law against despotism victory", making Italy conflict to attempt to prove in the fascist era penal code and the current democracy not.

Due to the reasons mentioned above, the theoretical circle of criminal law in Italy60Before the end of the main energy for the treatment of those marked with the constitutional conflict of criminal law, to meet the "bit by bit" type in some authoritarian color the strongest modification of the clauses (such as re abolished the death penalty)[14]In order to protect, to cancel the fascist organizations for the direct purpose of the criminal code; at the same time restored the criminal law in the reduction of (from) the light plot, stipulates that citizens have the legal rights against the official overbearing.

Two)Constitution supremacy; from "what is" to "what ought to be"

60In the late 1990s, in pursuit of a just social system for the purpose of the labor movement, rising in the Italy student strike. Some judicial departments in the influence of this social trend of thought of "of existing laws and some radical reflect", the relationship between force Italy criminal law scholars of criminal law and the constitution to preserve the value of the criminal law, criminal law, as well as the object of study, research methods and opened an unprecedented debate. The mainstream of the field results discussed the Italy criminal law scholars start from the Legal Technology School of law as dogma, disregard for ethics, philosophy and social and political evaluation of legal tradition, in the basic concept, criminal law science research object, research object, research content and research method, by the beginning of technology to value, from form to essence, from closed to open transition.

In the criminal law theory, the change first performance for the recognition of criminal law and the constitution relationship. After the big discussion, Italy criminal law scholars began to abandon the legal technical school "were be indifferent to" to all cultural premise "Pan philosophical attitude" in the basic concepts of criminal law issues, first by the absolute law, make every attempt to defend the rationality of the existing criminal law position, gradually shifted to the protection of the constitution the basic value or the constitutional basic human rights first, with the provisions of the constitution to critically examine the reality of the stand of criminal law. Think of basic human rights in the constitution is the highest value in the criminal law, all provisions of the penal code (such as the principle of legality) must be according to the provisions of the Constitution gives new meaning, it does not conform to the provisions of the criminal law of the basic human rights of constitution cannot be violated, must according to the spirit of the constitution repealed or amended, at present it has become the basic idea of science of criminal law of Italy.[15]Here it seems necessary to explain, the basic human rights in criminal law circles of Italy, is not only a criminal defendant or criminal without perverting the law rights, but also including the general citizens against crime infringed right (because "requirement is not affected by the crime, but also one of the contents of the basic human rights of citizens"); not only innocent citizens are not prosecuted rights, also including the suspect asked to accept the criminal trial or to prove her innocence by the criminal procedure rights[16].

Within the framework of the constitution of value evaluation on criminal codes, this not only means that the criminal law science research object could not be like the technology of law school claims that it is limited to the "reality" in the criminal law, but also means that the exploration of the logical structure analysis and literal meaning of criminal law is not likely to be the only the research of the criminal law. So, we can not only see the "should be" criminal law naturally return to criminal law hall, exploration of the nature of the crime to regain the important status in the criminal law theory, "the prevention and suppression of crime and criminal sanction system reform issues such as crime, the non crime, with the traditional criminal law of those basic problems in criminal law has play a decisive role in the position," criminal law and criminology, criminal policy, criminal legislation, criminal science combined with naturally became the Italy criminal law scholars "attention center"; at the same time, we also see, even though the research on "reality" of criminal law norms, people also abandoned to reproduce the process of thinking legislators only through the analysis of the logical structure and the literal meaning of criminal law, the traditional approach to the legislator's original intention to the interpretation of criminal law should have meaning. So the interpretation of criminal law in the criminal law, even if the stick should not be subject to any philosophy guiding people (such as the representative of the main Italy realistic criminal school Le, provoke) also think, "to correctly understand the law, must consider the purpose of the law and the regulation of social reality", "interpretation of the law is a gradual process, with the change of the social life of the meaning of legal norms should also have new content", "in order to eliminate the gap between theory and practice, the science of law must take the service standard practice for the." After60In the late 1990s,70The great debate in the early 1980s, that "regardless of the interpretation of the criminal law or criminal law system is the establishment of", "to deal with criminal law protection value beyond the formalism of the bound", regardless of "expanding interpretation or limit the interpretation of law, must be in accordance with the law, and not the contrary" objective theory interpretation theory, "in essence is to accept it".

Three)Open: facing the future

When the criminal law protection and the value of criminal law to become a criminal law research content, the criminal law (learn) is bound to the whole criminal science, social science and natural science open, could no longer be a limited existing criminal law and closed system. In order to correctly understand the criminal law "objective" and "criminal law protection value", must from the angle of ethics, politics, economics, sociology, criminology, research on the multi discipline of criminal law, value evaluation with doubt, criticism from the perspective of illegal criminal legislation and judicial practice. At the same time, "the various systems in the criminal law on the different types of criminal law from ancient to modern times, to explore the political and ideological background of" their "correct understanding of criminal law, has become a cultural connotation and value content" means necessary. There have been "Italy criminal law is the best law" will own the world and Italy criminal law academe, "now again into the criminal a criminology international trend", make "the comparative study of criminal law science became the Italy criminal law in a be just unfolding, extremely angry force".

"Today, people are no longer be the pink of perfection of the legal pursuit of the impossible Utopia, but admit the practice itself contradictions and lawmakers error factors, conflicting or law also exist in the law inconsistent. In establishing the system of criminal law in criminal law system, not to pay no heed to these problems; if you want to truly reflect the legal and social reality, jurists should not succumb to syllogism, but need to "follow the social reality, and this concept," is now regarded as the common wealth of the science of law". Italy famous criminologist Mando Vanni on the generalization of summing up the current situation of Italy with the criminal law, seems to also can say is the outline of the future development of a Italy criminal law.

 

Four, about the book

      

The basic theory of the criminal law of our country to the concept of translation, understanding of foreign criminal law and the specific provisions of criminal law theory of our country, has caused some confusion in the process of translation, the translator of the book, often do not know how to deal with the book a lot with our concept of similar, but not identical, but in an awkward situation: literal translation that reader; China apply existing concepts in criminal law, but again afraid mistakenly guiding people (because they have to say and we literally could not the same thing). Therefore, necessary to explain some translation practice your book here.

       As the author of the book in the Chinese version in the preface wrote, the basic structure of the criminal justice system, have a lot in common content, thus involving into the concept of criminal law system, the book will adopt free translation, provided that the provisions of the criminal law of our country and roughly corresponding with the name, the criminal law of China: "self-defense", "emergency". Of course, this does not prevent if a translator thinks a better name for reference, but also uses the literal translation: such as "legitimate reason", looks like in the translator, than the "exclusion of social risk behavior" or "blocking irregularity," not only more concise and easy to understand, but also can be said that this kind of criminal essence provisions. The concepts of basic, if the connotation and extension are quite, also as far as possible the use of China's criminal law concepts: as will be used in"Reato formale("form crime") and"Reato materiale("substantial offense") "translated as" crime "and" the crime ", will"Principio di legalita`(Law) ", translated as" principle of legality "(because the author of this book is in favor of the principle of legality in the form).

       But in the following two situations, the author intentionally or forced to use a different concept of criminal law in our country:

(1) misunderstanding of foreign criminal law theory of our criminal law concept in the system, or easy to cause misunderstanding or confusion in theory, as far as possible the use of literal translation. Such as "stylized facts" (i.e. in Japanese criminal law "constitution", as the origin of german"Tatbe`stande"Itself is" acts of state "or" typical behavior "," sin (mean)Colpevolezza) "(translator thinks, our country criminal law educational world in" criminal liability "on the issue of confusion, and Japanese criminal law scholars to the concept of" responsibility to" Has the very big relations);

(2If the noun) and the criminal law in our country should be relatively, back translation can not be. For example, in the book "general negligence" and "special" and "negligence" is one of the criminal law of China "ordinary negligence" and "professional negligence" roughly corresponding concept, but if the special fault translated into general negligence, cannot and the book of special fault why special fault hang up to explain. As for some difficult concepts, such as the seventh section of the seventh chapter1, will"Errore di fatto"Translated as" cognition errors of facts","Errore Sul fatto"Translated as" mistake of fact","Errore di diritto"Translated as" understanding error law","Errore Sul diritto"Translated as" the understanding of the law of error ", is likely to be limited by the level of the translator can not avoid, but your understanding; hope readers after an effort, finally to reach the purpose of understanding.

       Particularly worth mentioning here is: citation to the provisions of the relevant laws of the book, the one hundred percent is to "letter": rather difficult to articulate, also cannot lossy intent. Looks like in the translator, the law must not free translation; otherwise, it not only has to apply their own law concept to foreign legal risk, but also impossible to maximize the use of legal provisions of the content, to study the differences between countries in the legal system, legal concept, legal culture and more profound traditional etc. the. For example, the Italy penal code article575The first paragraph of the murder, if not literally translated as "any person caused one death, at ...... ", but according to some translation that translated as" murder, at... "Words, not only can not correctly understand why Italy's criminal law circles say that" crime is a kind of fact (Fatto) "(such as homicide is" any person caused one death "fact), rather than a" behavior (Condotta)". At the same time, nor from the legal provisions of the expression way, realize the provisions of the Italy penal code of punishment is behavior person instead of behavior, realize people (including criminal and victim) special status of possession in Italy criminal law system in the. By the way, if there are brackets legal translation, parentheses are the translator added. In spite of the translator in the translation process to faithfully reflect the original style completely, but limited to the reasons, subjective and objective aspects of mistakes can hardly be avoided, hope can be predecessors and colleagues.

       Borrow commentary edition book of the machine, the translator made the following things: one is that the original translation made some correction; two is in the different and the author of the book's academic point of view to appropriate review; three is in the right place introduces Italy Ministry of justice of Criminal Law Revision Committee Organization2001Years (to draft2003Years12Month) of some of the basic content; four is the Italy criminal law theory history content increased in the order of the translator; five is added to the translator "On China's criminal law scholars on the current criminal law of Italy "and" a misunderstanding of the Italy penal code1999  -- 2003Years, modify, add provisions repealed "as an appendix. In this way, the book by the translator of the comment on the content is already more than the original 1/3 (this is called "comment" version of it). If these work canThe reader is only through this book to Italy criminal law system and the criminal law theory has more understanding, the translator's efforts were not in vain.

                             

 

Translator 1998Years9Earlier this month

2004Years2Revised