Criminal illegality[1]Is sufficient and necessary feature of the crime in criminal law

    -- Concurrently consider the social harmfulness

 

 

 

How to define the basic characteristics of crime and criminal law derived from the specific system problems, have been controversial in China's contemporary problems in criminal law. After a long debate, the center also along with the concept of changing displacement, from the early focus on the content and structure gradually to the attention of social harm and criminal illegality, it is provided the basis for the micro history of our analysis:

 

1       Characteristics of crime and criminal law foundation

 

The definition of crime in 1979 Criminal Law is based on the 1979 Criminal Law Basis and the realistic environment, and is consistent with the criminal system and specification. Because of the nature of the harm of crime problems attributed to society, some norms of criminal law will come down in one continuous line. The analogy system of article seventy-ninth of the criminal law which is a typical matching with the basic crime concept system. "The law has not stipulated the crime of conviction, can according to provisions of this law which is most similar to the sentence, but shall be submitted to the approval of the Supreme People's court." That is to say, although a behavior is not illegal, but because of its serious social harmfulness, accords with the essential feature of crime, therefore, can be obtained through a special program into sin, and the Supreme People's court has in fact a fact legislation jurisdiction.

In the textbook, although scholars have cudgeled one's brains to tell students: the principle of legality is that our criminal law the principle of unity, although with certainty that the analogy and the principle of legality, but no matter how are unable to clear the legal principle of crime and punishment and analogous system conflict. So some scholars make fun of to say: "when the system and theory cannot make out a good case, scholars in the circle". Undeniable, perhaps this said the circle for the promotion of the legal principle of crime and punishment, the implementation of crime in law, think of the positive role, but on at least with the unification of criminal law, and criminal illegality is in second place.

With the change of system and idea, improve the unified form, in essence contradiction in the revised criminal law. The criminal law of 1997 announced the principle of legality, and abolished the system of analogy, this time almost all the textbooks can be right and proper that the principle of legality and analogy are mutually exclusive, which is abolished on reason, is the result of carrying out the principle of legality.

Review this paragraph of brief history, at least we can find, and in between the principle of legality and analogy, the origin of fundamental is for different choices between criminal law and social harmfulness of sparse heavy thinning light. There are many in the legal principle of crime and punishment are not consistent in terms of the 1979 Criminal law system, which is decided by the foundation of criminal law at. The criminal law is all to crime as the basis, to define the crime characteristic inevitably involves determining the other system. The main characteristics of crime in 1979 Criminal Law is defined as the serious social harmfulness, ignoring the criminal illegality, inevitable in this foundation open emphasizes the social harmfulness of flowers, criminal norms derived therefrom must be consistent with the social harmfulness, and the corresponding normalization, definition and criminal illegality contradicts, thereby conflict with the principle of legality, analogy is a typical emphasize product social harmfulness as the standard, some "pocket crime" as the existence of social harmfulness is related with the emphasis on the.

The criminal law of reinforcement is a bright spot in 1997 Criminal law. When talking about the criminal illegal and criminal law, the biggest difference lies in the writing principle of legality and displayed in the other system of the criminal law. The 1997 criminal law third has established the legal principle of crime and punishment, which is the criminal law as a standard, should the world needs. But the principle of change, no change in the basic concept of crime in the criminal law, but used to the expression method of criminal law in 1979, only to the specific byte changed. This also leads to a double standard basic concepts of criminal law, and the double standards and not without opposition. So about the conflict between social harm and criminal illegality relations began to become a major issue in the criminal characteristics. Criminal illegality is the foundation of the legal principle of crime and punishment, and the principle of legality implement the inevitable requirement of crime is the essence of illegality.

 

2       Analysis of illegal problem from the article itself

 

A step back, back to the origin of crime characteristic induction, needs to think is, for the characteristics of really is allow all doubt?

We look at the article thirteenth of the criminal law: " all the harm state sovereignty, territorial integrity and security, secession, to subvert the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, violation of property owned by the state or collective owned property, infringement of citizens' private property, infringement of citizens rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be subject to criminal punishment, is a crime, but circumstances are obviously minor and the harm is not great, not deemed a crime."

The article analysis, can be found:

Firstly, both the old criminal law, and criminal law, adopt the concept of enumerative method to express the crime. But we clearly see the list of matters only in criminal law mainly chapter titles or the object of a sum or comprehensive. That is to say, or the violation of the criminal law in the social relations (or benefits) perspective to the general. The implication is: the so-called harm behavior refers to the provisions of the criminal law act, hazard refers to the so-called harm for the object of crime, is coupled to the law, not necessarily to conclude that this is a kind of social evaluation. This is listed as a feature of criminal law of the footnote, rather than independent of criminal illegality.

Secondly, then a step back, even if it is not the object of the crime of induction, but also can not come to the inevitable conclusion -- the social harm is one of the essential characteristics of features or. Description Logic clauses is:

"In accordance with the law shall be subject to punishment of all" "...... "" behavior is a crime". Through the analysis we can find that: "in accordance with the law shall be subject to criminal punishment" and "harm the social behavior" is the relationship between the species. According to the semantic and logical point of view, this is a real definition, definition and kind is belongs to the real definition, namely first determines the belonging concept, and on this basis, specially express need other kinds of definitions and belong to the same concept of the different, is also "the difference". For example, when to criminal law definition, a first show that criminal law the legal conception, then to reveal the concept with other (for example, civil law, criminal law) is different, namely "difference". Formula of criminal law (expressed asThe defined concept) = (crime and punishment) difference + legal (genus). The crime is: = criminal and social harmfulness behavior. This extension, concept of genus obviously should not be used as the characteristic, which reflects the commonness and characteristics of crime, not in the criminal law. That is to say with "social harmfulness" sexual behavior is not necessarily the act in criminal law, but a multi-level perspective judgment standard, this behavior is "everything *......" Behavior, apparently including multiple levels to determine the outcome of. Since it is not a criminal issue, obviously belong to the crime "behoove is in accordance with the law shall be subject to define punishment". That is to say only after the filtration behavior is the crime of criminal law.

So, the analysis from the criminal law stipulates, only shows that criminal illegality is the only property crime. The characteristics of the crime in criminal law can be determined only by criminal law, there is no other standards.

 

3       Social harmfulness is the reverse of standard

 

Characteristics of social harmfulness is not a crime, but a reverse standard, namely non marking. The 1979 Criminal Law and criminal law in 1997 stipulates: "but circumstances are obviously minor and the harm is not great, not deemed a crime." If such a statement could prove that harm standard? We can for such sums up two aspects of analysis:

(1) reverse induction cannot be used as a characteristic way of expression, which is the basic rules of logic. According to the definition of the rules: (A)Should be commensurateDefinition of the concept, namely extensional equality and the defined concept; (B)Not cyclic; (C) should not be negative judgment;(D)Should know.In particular, defined to avoid the use of judgment should not call. We can say that "crime is not what", but not "crime is not sure what" is the characteristics of the crime, otherwise, we will not know what is the crime. The same logic, the negation not judgment cannot be characterized as a representation, because the negative results similar to the kind of concept; (2) although not as a feature, but can be used as a standard for the crime, the judicial power space. This proviso provisions for: "the plot remarkable slight" + "little harm". But obviously, not more than two parallel relationship. In actual judicial judgment, because "the plot remarkable slight" is beyond the scope of the law to judge, or form already meets some elements of a crime, and "harmless" become a crime reason, effectively reflect the law of the social demand, or the spirit of the law to be carried out, the harmfulness of significance began to reflect.

 

Objective meaning so I do not oppose the harm to the society, not only this, but also admitted in the multiple layers of meaning, but the characteristics of the crime is specific in the criminal entity law, is normative, is a form of significance, is the result of specific systems.

 

1 the social harmfulness is the embodiment of the policy of historic, criminal illegality is the system practical results

 

Social harmfulness cognition is the concept of a policy and historic

First of all, limit prescribed by law is always illegal standards and legitimacy, and for the laws of nature (good or evil law) law itself is unable to prove yourself, so as the social harmfulness has value of color itself is actually provides reasonable grounds for legal power itself will implement process. Social harm evaluation standard of performance in different historical periods as the reference basis is different, must be combined with the specific social reality analysis. But there is no exception, in accordance with the critical criminology label theory, as the traditional sense of the harmfulness judgment results are unconditional acceptance of the concept of "crime" results. All power is the result of non objective.

Because the social harm is not an objective material properties, but with some world view in society were evaluated according to their own emotional results. The development of human itself despite the external environment determine or influence, but not in the mechanical reflection, but rather the product of free will, is a product with their own thinking, or is the emotional evaluation of certain social groups. In a different society period, because of different living conditions and people's way of thinking uncertainty, causes the society eventually rose to illegal behavior as well as the degree of difference. But there is no exception, as the right to judge the result, finally tends to reflect the will of power. The most prominent is the provisions of criminal law. Changes of contemporary criminal law only Chinese has reflected this content. The criminal law of 1979, play the market as a sign of economic crimes and the crime of pocket crime, both has the rational basis of reality or legal system. As a violation of national plan to guide and mandatory economic plan, the planned economy is one of the most serious harm behavior, which is the social basis of reasonable play the market reality. At the same time, such illegal acts as the planned economy comprehensive hazard, which has global significance, not for a specific domain problems, this is the legal basis that time under the conditions of the pocket crime, the social harmfulness play the market behavior can not be ignored. But after the transformation of social economy, play the market lost the realistic foundation, because the play the market behavior is no longer a comprehensive, serious harm the social behavior, an effective means of prospering the market economy under some conditions, the market recognized even be encouraged. The 1997 criminal law the crime is an inevitable choice of social system transformation after.

For the social harmfulness and size has characteristics of the times a little seems to be known, but how to partition is an era that had to be considered, especially critical in times of change, how to identify hazards become intractable and had to face the problem. At this time, ideology and power, power and environmental power and its understanding of the harm of changes, standard boundaries begin to blur, which will lead to the uncertainty of the policy, the conflict between law and policy uncertainty caused by the. To play the market still crime as an example, in the planning system and market system yesterday, today, to conduct contrary evaluation is relatively simple and relatively well understood. However, how to define a difficult problem on the eve of the old and the new system transition. Several years ago, Tianjin occurred Dai Zhenxiang case has set people thinking. Dai Zhenxiang by the judicial organ to play the market restrain by law because of sin, a few years after being corrected. This is referred to as the social transition period the harmfulness of the cognitive problems. The judicial authorities insisted that Dai Zhenxiang acts constitute a crime according to play the market, play the market parties act is fully consistent with the elements of crime. Defense lawyers argue that the act does not constitute a crime, play the market. Because the crime has three characters: one of the most fundamental is the behavior of serious social harm, while Dai Zhenxiang's corporate business behavior not only for the society is harmless, and is active in the society and the people, the company involved in the problem is just the general economic problems, and not so serious social harm, how can as the crime be treated? Between the two views then has also led to the theory for some discussion of criminal standard. Today, this is in fact the social harm and criminal law conflict problems.

Indeed, when the crime in criminal law should be combined with multi criteria. But first must follow should be criminal standard, a specific performance for the crime in the criminal law, any behavior can be criminal sanctions must first analyze the specific elements of the crime of the criminal law. Only in accordance with the constitution of crime can be convicted. But only analyzes elements is not enough, this is a form of crime, besides formal requirements after also includes more substantive content, namely must have serious social harmfulness, and it seems to be the criminal law itself is difficult to solve, especially when the dominant ideas of split unity policy and legal system. The occurrence of the. How to solve the involved problem contains the entire understanding of criminal law and criminal policy. On the policy level, does not have the harm behavior does not have the punishment, should not start criminal procedure. And for the purposes of criminal law requirements constitutes compliance seems to determine shall be held. The author thinks, this problem consists of two levels: first, the division is the policy and law division, namely the social harm and criminal illegality split, if still confined to the social harmfulness as the characteristics of crime in the sense of law cannot make out a good case, but also damage the certainty of criminal law and criminal content determination social harm, because a policy concept Is it right? System concept. Secondly, in the policy and institutional issues, emphasizing the system is actually not is to maintain the principle of legality, or at the most just to maintain the principle of legality, absolute. Policy and institutional disputes but mainly is also two aspects:

First, policy thought to have harm, and the system is not considered in criminal law;

Secondly, the policy that has no harm, and the system that the criminal law.

For the first case, it seems not very controversial. Legality is rigid, especially for a crime problem. Criminal policy must not exceed the legal form of privilege. For the second case, is also the focus of the debate, the solution is only one -- should be a crime when not use criminal law to the crime. With the principle of legality is essentially the same, if the analogy can be applicable in the premise of a defendant, relative to the principle of legality, the principle of legality is why can not include criminal law not evaluation? Why not apply reverse standard?

In our current reality, perhaps in the criminal law still can not rule out the harmfulness of the standard, but the concept of criminal policy in the concept of law is different, because the set on the basis of different, the former is the power as the basis, the latter is take the law as the basis.

For the social harmfulness view is also reflected in the "strike hard" struggle. However, it must be based on the provisions of the law of reality, in the policy, legal requirements for criminal illegality and social harmfulness policy form coordination, directly with the "strike hard" policy is to define the principles of statutory crime[2]. It mainly includes deterministic, punishment constitutes a crime, the "strike hard" in accordance with the law in the following aspects: first, when the relationship between crime and punishment, not determined, should adhere to the basic principles of statutory crime, not because of "strike hard" let violate the principle of legality act. Secondly, must adhere to unified standards of conviction and sentencing, is the "object behavior crackdown", not only will be severely punished as a pointer to. For example, the judicial interpretation can not be based on the "strike hard" or other situation, basic spirit beyond the legal explanation. Clearly defined cannot ignore the law, simply expanding the legal provisions of the interpretation range from the rational point. Abide by the legal standard of criminal law, is the basic moral appeal power and basic obligations.

 

2 the social harmfulness is the concept that science, criminal illegality is the standard conceptual sense

 

The same is the study of crime, crime on criminal law is the legal definition of results, so the illegality becoming standard features, and Criminology meaning of crime, is studied from a practical point of view, not by law as the main or only standard. Professor Kang Shuhua in his book "Criminology -- history, status, pointed out that the future":

 

Crime, crime and criminal law includes 1 concept of crime in criminology is based on the provisions of the criminal law as the basis;

Illegal act contains 2 concept of crime in criminology is an anti social behavior;

Contains bad behavior 3 concept of crime in criminology.[3]

 

That is to say, the Criminological Significance criminal practice is a kind of social harm behavior. This kind of harm behavior not only includes -- criminal illegality -- crime, also includes other illegal acts and bad behavior. These behaviors are usually can be defined as a kind of antisocial behavior, although some strong, some slight, finally can be expressed as an anti social behavior and mentality, so the object, the study of Criminology and criminal jurisprudence method and the results are very obvious differences, even if some criminal offence, crime is not a pure from the illegal angle to explain or research, not to solve the problem of criminal responsibility. Because of its emphasis on social harmfulness, legal norms instead of focusing on behavior, social norms, but stressed that behavior, emphasis on the treatment and prevention of the parties, the analysis of social responsibility and obligation.

If the crime as a social norm violation, but not completely is the criminal law issues, there are the following evaluation:

First of all, the evaluation object is a multi-level, for example, in accordance with the "criminal law" shall be punished in accordance with the provisions of the act, "Public Security Management Punishment Law" should be punished behavior, also includes to be negative from a moral point of behavior, even including some may evolve into the social harm of bad behavior.

Secondly, the evaluation approach is a multi-channel, law, religion, ethics, morality, customs, traditions, theory can be used as the evaluation approach.

Thirdly, the evaluation method is the multi type, can be interpreted from the genetic, can be interpreted from the personality, can be interpreted from the moral, can be interpreted from the environment.

Fourthly, the evaluation result is diversity, for example, drinking customs, individual way, in Chinese is common in South Korea, may be considered disrespectful. In the eyes of some people, guns and evil is prohibited, only is the way; in the eyes of others, the gun is an important means of protecting personal rights, guns and security company.

The criminal evaluation why performance for diversity, where crime is a fact, not a specification.  

The following are analyzed from the angle of criminal responsibility:

Generally, the criminal responsibility of Qin Dynasty had to act as judge standard height,[4]As Zhang Jinfan of the "China ancient legal system of induction". In contrast, in many modern criminal law from the perspective of age to determine the crime subject qualification, although it looks modern regulation is more reasonable, but the two are not essentially different, which are a kind of substantive criminal law.

The provisions for mental patients although age regulations together, but with age (or height) there is a substantial difference, the latter is the legislative provisions, the former is mainly a scientific appraisal of the results. Age is not natural is the basis for criminal responsibility, as a kind of legislation, as well as the standard height, is a legislative results.

Mental disorder is mainly the use of forensic psychiatry and scientifically identified by the appraisal department, is the recognition of the harm to the society, although the legislation stipulation, but this is the conclusion of recognition, is ultimately for the criminal responsibility of approval, a result of the age of criminal responsibility are the legislative provisions, the criminal and the ability responsibility and no direct relationship, that is to say, we have to admit that some did not reach the age of criminal responsibility is in fact completely with the identification and control ability, normal, are exempt from the criminal responsibility is not enough for their abilities, but the legal provisions. Today will be the age of criminal responsibility is determined as 14 years of age, tomorrow may be defined as 13 years or 15 years of age, and thus has the possibility of criminal illegality. So the spirit and age appears to be simple, but there is a fundamental difference between harmfulness illegality.

 

3 the social harmfulness is the legal standard, application standard of violation of criminal law

 

Garofalo has the essence of crime is defined as: in a behavior is considered a crime previously required no moral factor is the moral damage, and the damage and the absolute performance for compassion and integrity of these two kinds of altruistic feelings hurt. That damage to the universal moral sentiments in no circumstances, neither possible nor possible criminal offenders, but this is from the natural crime perspective, the current standard and the social harm on the moral damage is beyond the mark and moral factor, the social harmfulness has become an important factor of criminal legislation the rationality of social harm, legislation reason is given more.

The Japanese scholar Tanaka Jiro believes that, with the establishment of the concept of the welfare state, although many of the original administrative illegal aspects such as economic behavior is the traditional view has no ethics should be condemned, but is directly caused by the consequences of their actions and national sexual well-being, so in the formation of certain specification based on, it gradually into the public ethical emotion. Therefore, in this case, the natural crime and statutory crime "matter" on the differences have gradually blurred, but a kind of "quantity" of the significance of the differences[5]. Social change system updates and other reasons, makes the derivative order of life has gradually become the mainstream of life order, for the legislative standard have put forward new connotation.

From the legislative point of view, under the premise of social value changes, countries pay more attention to the public welfare, and public welfare administrative affairs, the concept of justice more and the people's livelihood concept together. Countries in strengthening the legislation, more emphasis on health, market trading rules, environmental protection administrative illegal and lead to a collective victim care. In fact it is regarded as a kind of new social harm, and the harm has evolved into a dangerous legislation aimed at. "Dangerous levels" theory to replace harm nature view, have confirmed in the German Court precedent[6].

As the code of behavior way, for a long time, the relationship between law and social ethics foundation is always the important content that the legal characteristics. The criminal law because of its characters is very close with social ethics foundation. Civilizing process which runs through the criminal law. No matter is the opposite of canon law of Western and secular law, or the ritual and the punishment of the Oriental relationship of body, actually is a process of moral law. The torture of courtesy is laid the social foundation and rule base with natural crime is the premise of crime in the criminal law. Natural crime establishment after meeting the basic requirements of social existence of maintenance, maintenance on the basis of social ethics is more on the system. In the period of natural economy, autonomy, voluntary moral is slavery, the service for the tyranny. Because the system itself is full of tender feelings of moral veil covering. The concept of image supplementing that criminal law is only a form, morality is the essence. But "time only moral dominion is aligning with the natural economy era, in this era -- the era of commodity economy, although it does not exclude the universal moral, but the state and society, not by virtue of attending, and according to the indications; secondly, it has the universal applicability to the moral need, and not because of identity different in moral is different.[7]"In the natural economy society, the lack of ethical foundation or some crime legislation and ethics does not directly related, but it does not appear to be the main factors of crime, the legal basic premise and connotation and modern significance of legal crime from.

In the transition period of our country is currently in the traditional law to modern law, the value orientation of modern law requires the basis and the pursuit of social style is the rule of law, openness, democracy and autonomy. Especially the spirit of rule of law is not only the requirements of power by law is the most authoritative, more standard and most comprehensive profound meaning lies in the law to become constrained behavior. Because in essence, under the condition of modern market law is a kind of the legislative process, that is to say, under the condition of modern market law not by legislative organization designed, but was found out, is formed in the autonomy of the rules in the market. But this does not negate the changeability of modern law. Because the operation mechanism of modern society and modern law has autonomy, rejection of traditional moral factors of super stability. In the legal field as to standardize the operation of the market laws are updated in a dynamic. The market as a "market failure", on the other hand, the birth of the law of large numbers, provides a predictable environment for the operation of the market transaction. The legal system of the market main body, the main body behavior, economic control, social security, natural ingredients Great dilution law. Reflected in the criminal law is the scope of statutory crime continuous proliferation. In 97 years of criminal law, product quality, financial, tax, environment, intellectual property rights and market behavior of making prohibitive norm, all without exception shows the market conditions of legal extension.

So, the social harmfulness provided the cornerstone for legislation, provides the legislative reasons in the hazard in different periods of the change in contents for legal reform. Criminal illegality is the standard of criminal legislation, the social harm is the standard, if the harm to the criminal law applicable standards, it will reduce the authority of criminal law and legislation itself.

 

4 social harmfulness is flexible, the subjective standard, criminal illegality is rigid, the objectivity of the standard.

 

The criminal substantive law provides a normative standard for justice, but the criminal law as the foundation of law is just a kind of rigid requirements, or say network engineering. The application of law, is in need of a law and the reality of the docking process. America famous judge Cardoso said:

 

"In my first year as a judge, I found no trace of my sail away in the ship in the sea, so I have been very upset, because I'm looking for certainty. When I found this pursuit flog a dead horse, I feel depressed and frustrated. I'm trying to reach the land, to have fixed and identify the rules of solid land, the paradise of justice,...... As the years passed, with the nature of our more and more reflective of the judicial process, I have become reconciled to this uncertainty, because I have come to understand it is inevitable. I have come to understand: the highest level of the judicial process is not found in the law, but to create law."[8]

 

Although the judge in the judicial process, legal issues, have different opinions, but the legal use of rigid reality in a sense is the reality of legislation. In the face of the reality of the time, illegal problem has become blurred, "within the boundaries of these identified, within the selected range of activities, the selection principle of the judge and the last of the legislator is the same, which is suitable for the purpose of principle."[9]The French establishment always is abstract, the type, the reality must be understood by the judiciary through their own values, including the understanding of the law and for the understanding of reality. Judicial work must meet a "social needs". The so-called social demand, is actually a judge on the social harmfulness cognition. In Cardoso's opinion, the judge for the law must be in the law of the "void", make use of the free heart certificate for social needs understanding. "If the abuse of this power, they have violated the law."[10]

Judge Cardoso and Blackstone's opinion is different: the latter thinks essence in order to seek a kind of positive law judge law, so is the search process. The former thinks, legal thinking is changed along with the development of social demand:

"The meaning of struggle we don't need the fruitless -- detailed discussion of law and justice and forget their differences between a deeper level of harmony....... 'we are the functions of the court is',...... ', through continuous restatement of legal principles and give them uninterrupted, new content to make them keep pace with moral customs'."[11]　

 

The judicial process is actually a process of combining the criminal law and social harmfulness. Criminal illegality is objective, rigid, impassable, the establishment of the applicable for the judicial process. However, the criminal law is the standard level, when specific reality, there is a certain gap between. The judicial process is such a process to make up the gap. The judge's job is to fill in the gaps. The fill mode can be varied, can be through effective judicial interpretations by the unified regulation, can be in judicial legal framework for understanding of crimes. As a judge, must abide by the criminal law standard, follow the basic logic of the law itself, safeguard the dignity of the law. In this context, you can according to their own values, make a reasonable judgment according to the needs of society, give full consideration to the social hazardous size, as Cardoso said: "the judge shall use a tradition as knowledge according to discretion, by analogy method, by the discipline system, and obey 'basic needs on the order of social life'. In all conscience, there also left a rather broad discretion field"[12]. But in any case, judicial process is not harmful to the society impact of criminal law, the criminal illegality is a can not shake the standard, social harmfulness judicial process for supplement of criminal illegality. Is a violation of criminal law and the social reality of the harmonic.