Criminal law in Criminal Law -- on the relationship between survival

Relationship between survival in criminal law

The relationship of Criminal Law --

Chu Huaizhi

[Abstract]
The relation between criminal law of criminal law, and the doctoral students on the relationship between "criminal law" the problem about outline. Relationship between survival in criminal law, refers to the criminal law and has operations in relationship, this is the core idea of the relation between criminal law theory. Here the so-called criminal law, does not indicate a country's criminal law.
Study on relationship between criminal law is "criminal law", refers to the presence of state and mode of operation of the criminal law on the external and internal relations, namely survival in criminal law. "Relationship" means the mutual effect. Engels thinks, the interaction is the ultimate cause of the development of things real. Furthermore, the relationship between interaction is the interaction of things. Communication is the relationship of form, mutual influence is the essence of the relationship. Effects include constraints and promote two aspects. The contemporary western and Eastern rising a philosophical theory -- Relational Realism: the relationship is really, really relationship. This theory has abandoned two thousand years dominated absolute entity Western Philosophy (ontology). Survival in criminal law relationship, relationship is the criminal law main body, is the essence of the criminal law.
The relation between criminal law is not equal to the criminal law related, they are two different concepts. The relationship between the criminal law is the existence and operation in criminal law. Criminal law, criminal legal relation, is the national power of punishment to punish criminals in the process of exercising the rights and obligations.
From a structural perspective, the existence of criminal law and criminal law is the relation of network operation, the contents of criminal law and criminal law relations within the external relations in two aspects, structure system. External relations of criminal law: Criminal Law -- economy and criminal law; criminal law -- on the political structure, ideology and criminal law; criminal law -- before the crime and criminal law; criminal law and criminal law -- after execution; criminal law -- about other departments (the subsidiary criminal law and criminal law), its subject and the science of criminal law. The internal relationship between the criminal law: the relationship between the national will and objective law; relationship between the criminal law protection function and security function; the relationship between crime and punishment; penalty purpose and punishment mechanism; relationship of criminal legislation and applicable interpretation.
On the criminal law from different angles, to study different methods, from the philosophy angle, useful methods, etc.. The relation between criminal law and is also a methodology, called analysis relationship. Mainly analyzes the relationship: Utilitarianism and justice, national sovereignty and human rights, purpose and means, object and process, structure and function. After a hard and gradually improve, in order to relationship between criminal law theory in theory field of criminal law occupies a space for one person.

A, social economy and criminal law
The criminal law to serve the economic base, and ultimately depends on the relationship between economic basis, all this relation is the economic and criminal law. The criminal law for the economic development, social consensus, no need to be the focus of. Modern criminal law of three democratic principles (legal principle of crime and punishment, punishment fits the crime, penalty humanitarian) is the product of development of capitalist production relations, which is the most powerful evidence of economic criminal law changes and operation restriction.
On the criminal law theory, economic criminal law embody in two aspects:
  (a) effect on the connotation of the criminal law. 1 is reflected in the crime (such as crime of theft), the concept of change is the most common cases, in the natural economy and natural economy, economic relationship is simple, rarely circulation, theft is composed of pure single, namely the secret steal, firstly and primarily infringes upon right of possession. Not violations of occupation tenure, due to property transfer phenomenon rarely but rarely happens, early in the criminal law in general do not treat with crime, no "occupation". Fraud, because it is the victim of "voluntary" (though only the surface phenomenon) to hand over the property, it does not violate the right of possession (like theft, so that) early western criminal law fraud is not a separate crime. In case of need to punish the act of embezzlement or fraud in theft crime. Embezzlement and fraud is separated from the theft crime concept, is the development of commodity economy, the phenomenon of the property circulation. In Medieval England adultery punish only the second generation pedigree, prevent adulteration and destruction of property inheritance, is motivated by economic considerations. 2 is reflected in the penalty area, in the contemporary world penalty system pillar of the imprisonment punishment as an example, due to the commodity economy to grow in the feudal society, the vast majority of members of society (ruler) of personal attachment relationship increasingly weakened, individual freedom, freedom and labor with a personal wealth. Only when individual freedom has the value, the deprivation of liberty may become a kind of penalty.
  (two) influence on the concepts of criminal law. The conception of criminal law in criminal case, criminal law always survive in the specific economic model for the formation of the social relations, the transformation of economic system is bound to cause major changes in criminal law, from the concept of point of view, this change will ultimately relates to criminal law function adjustment. In the reign of economic system, the citizen is not actually the economic freedom, so it has not only the political state, civil society, the relationship between the state and citizen is the relationship of controlling and being controlled, it is difficult to imagine the political democracy. The function of criminal law under this kind of background is simple: combating crime, maintaining the order of. The criminal law only protection function, may not have the sense of balance. With the gradual establishment of market economy, stand on one's own economic actors, and civil society gradually formed, civil rights and state power really possible in balance, criminal law protection, will also have the protection function of criminal law (human rights), become the sword plus days flat. The above is about the relationship between economic system and the criminal law. If the crime rate, controlled economy has a low crime rate, this is because the citizens of all acts are under state control, no move free, the work can not be arbitrarily selected, fixed income, everything down, also be to control crime. Of course, this is in a high crime rate and low heavy social cost (the national economy to the brink of collapse, social remain stagnant) return, from the overall social value judgment, to small and lost.
Economic constraints of criminal law, the economy of course including productivity (including science and Technology) and the relations of production (mainly reflects the economic system). Generally speaking, productivity change is through changes in the relations of production of criminal law.
Economic criminal law, its mechanism is complex. One aspect of the performance of dual role: criminal law function value of the controlled economy system biased, but has a low crime rate; the formation of criminal law function balance under the market economy system, but in certain period crime increased significantly. On the other hand, for the diversity of method: some direct effect; most is the indirect effect, through the intermediary role, intermediary mainly refers to the superstructure factors, such as the power structure, ideology, national policy and so on.
  Two, the power structure and criminal law
Power structure and criminal law is a two-way relationship, criminal law service to each other and subject to the other side, the latter is the focus of discussion on the relationship between the criminal law (the following issues described as well).
From the past to the present, the power structure of the world there are two main types of. 1 centralized. Centralization may (only possible) accept administrative efficiency benefit, but there can be no check and balance of power inside, also do not have power of supervision outside, because the centralization of power is the inevitable rule. In the power structure, sometimes talking about democracy, but democracy is the essence of "for the people" rather than "to the people". The lack of democracy, on the lack of legal system, so it is difficult to have a good legal environment, so the laws, lax enforcement of the law, the phenomenon of pressure law, not the law, are inevitable in power generation. The lack of democracy, on the lack of supervision, power without supervision will inevitably lead to corruption. Power corruption greatly weakened the state power and effect of struggle against crime, not to mention some corruption itself is a crime, and criminal associate oneself with undesirable elements will not likely to deter crime. This is the main reason of criminal law inefficient. Criminal law is inefficient in crime rising background, usually measures against crime is to turn to the severe punishment. 2 decentralized. Decentralization of powers functional departments and the division, is a kind of power combination. The essence of decentralization is to realize the check and balance of power within the. Balance can only be based on law. Decentralization is based on the rule of law. Legality is the inevitable requirement of rule of law and an important part of the. With the legality and the rule of law. That the principle of legality in the world today has been the decline is not based on. As long as not in favor of rule by man, cannot deny the legal principle of crime and punishment. The inherent link between the principle of legality and decentralization. The basic value lies in the restriction of statutory penalty right, establish the moral foundation for the criminal law. Adhere to the principle of legality, abandon the analogy in criminal law, in judicial practice may be less punishing criminals. Perhaps this is the price paid for the realization of the basic value.
The mechanism of power structure in criminal law is: (1) the power structure determines the state of social governance (rule or law), positioning the formation of the power and the law (actually more or less). (2 ) governance determines criminal law order and operation principle, because the criminal law is a kind of management tool.
War and criminal law, is a particular problem for power structure and in criminal law. Here refers to the "war", not including the anti aggression war against oppression, also do not include the international criminal accused of war crimes, many outside the two war "war" exist in the world today, there are between country and country, also has a domestic nation, but are regime launched, direct harm is innocent civilians. But it has been excluded from the outside the jurisdiction of criminal law. This shows that the criminal law subject to the regime, on the other hand, the ordinary criminal law no matter very situation (such as war, martial law) social harm caused by government behavior. This is outside the scope of the code validity problems.
  Three, the ideology and the criminal law
Ideology refers to the political, legal, moral, philosophy, art, religion, social concept style.
  (a) political thought: emphasizing the Kingdom (usually referred to as "sovereignty", I think "the kingdom" by the state power more accurately, because the modern meaning of sovereignty should be the "people's sovereignty") or human rights? Outstanding class struggle or social affinity? Far-reaching impact on criminal law and criminal law theory. The theory of constitution of crime constitution theory for example, Germany, Japan and other continental law three yuan structure (with constitutive elements of crime, illegal, have the responsibility of Anglo American criminal law theory), and double layer structure of crime (crime main body structure; liability adequacy condition, is the exclusion of legitimate defense), common point is self restraint mechanism embodied the power of punishment. Dual type four elements crime constitution theory of the criminal object (socialist social relations are violated) an independence to body and placed in a four element of the first, the class nature, enhance the ideology of criminal law.
  (two) Philosophy: value goal of utility and justice relationship. The utility has partiality, even the national utility, in the modern society because of the interdependence between interest groups enhanced the historical background, the partiality degree decreased gradually, but not eliminate bias. Justice, not favoritism, its essence is the two or more different balance of interests. With partial characteristics should be fairly restricted utility, utility to just as the border. The utility is not restricted to pollution. Utilitarian and justice relationship is: justice is the category of relationship, there is no utilitarian, just no dependence; no justice, utilitarian will become a public hazard. In criminal justice, utilitarian justice is restricted by the state, right of penalty constraints subject to the protection of human rights. In this sense, justice is the utilitarian is restricted by the. But in practice, reflected in the theory of criminal law, some weight gain, and some heavy justice. For example, on the implementation of risk behavior does not stop responsibility in physiological drunkenness of reasons, social interests focus on utilitarian, free action of cause that focus on justice.
  (three) the legal culture: questions about the nature of law, and social status, the relative stability of the concept system, its core is the awareness of the law. Law is the right or obligation? What is the relationship between law and morality? The ritual and the punishment is based? Have an indirect impact directly or profound different answers to these questions of the criminal law of the state of existence and ways of operation. Social life and national management "to" or "little" to rely on laws, which is formed by the impact of western culture and eastern culture under different experience of the rule. Rule of criminal law experience determines the antenna length and width of penal code coverage.
  Four, crime and criminal law
The relationship between crime and criminal law is not here refers to the relationship between crime and punishment of criminal law inside. To analyze the relationship between crime and criminal law from two aspects. (a) to observe the relationship between crime and criminal law from the ontology, is being and consciousness, is the relationship of cause and effect: a crime is criminal law; crime criminal law changes to promote change. From the knowledge contact, modern criminology promoted the development of the criminal law, criminal law school originated in the criminal anthropology and sociology of crime. From the overall perspective, crime (body) for criminal law as the fruit, is correct. However, the increase in crime, Europe appears trend of decriminalization and depenalization, basic point is that after the two war of criminal law reform movement in Western europe. How to explain the seemingly contradictory phenomenon? Another layer of this is the relationship between crime and criminal law. (two) to observe the relationship between crime and criminal law from theory of knowledge, is the relationship between the subject and the object, is a reciprocal causation relationship: harm behavior much need for punishment and to multiple penalty, subject (Criminal Law) has the freedom to choose; in order to save judicial resources so that the relative concentration of limited power to deal with serious crime, in order to humanitarian consideration, the subject can delete less harmful crime from the criminal law (innocent); out of the traditional penalty function of doubt, there are many alternative penalty measures (non production). Rational response to crime organizations, is the main target of the reform of criminal law. As the will of the state of the criminal law on the crime of reaction is there for a purpose, namely to control crime. For this purpose, we must rationally organized. A reasonable standard, but also by the body to determine. But it is not no objective standard. The rationality of at least 2 standard: (1 ) with (or at least close to the objective law, namely the crime law) -- crime originates from social contradiction. It can be launched 2 conclusions, one is the basic cause of crime is a reality, internal, external, not historical factors may be the main reason for the occurrence and change of crime. The two is to control the crime should adopt comprehensive management policy in the strategy. (2 ) the best combination of utility and justice. On the utilitarian, one is considering the resource input and output efficiency of gain and loss ratio (presumably crime growth conditions some misdemeanor for decriminalization reasons); two is the crackdown and the crime situation generally adapt (some of which may be mainly due to national criminal law punishment structure). About justice, protection of human rights is the first line of defense, the main is to insist on the legal principle of crime and punishment commensurate with the crime punishment.
  Five, execution and criminal law
On one hand, the execution of criminal law; on the other hand, the practice and effect of the feedback effect of criminal law. The execution, contemporary mainly refers to the execution of imprisonment. Effect of execution of criminal law is mainly reflected in the following two aspects.
  (a) practice produced some important penalty system, mainly the commutation system (Modern Western as early as 1817 America New York good reduction, since then many countries to follow the prescribed in the prison law, this system has function of alienation, in the west by the previous encourage prisoners commutation positive transformation gradually evolved into the prisoner as long as not in prison riot should get commutation and parole system (right) originated in the British practice of releasing the permit system and the prison system ").
  (two) the effect of information feedback influence on the changes, mainly for the non penalty (to be exact, the non imprisonment punishment). The effect depends in the following factors: (1) the 6 execution mechanism of material conditions, humane treatment and prison potency approximately proportional to. (2), the number of prisoners in prison scale and efficiency is inversely proportional to the prison. (3 ) the prison management and scientific level and efficiency is proportional to the prison. (4) the staff quality and its effect is proportional to the. (5) the social morality level and its effect is proportional to the. (6 ) social open degree and efficiency is inversely proportional to the prison. The internal mechanism of the front four of execution department, two belong to the external environment. The former 5 basically are controllable factors, although very difficult, time-consuming and costly. The last one is irreversible uncontrollable. The prison is a place of imprisonment, the prison in nature are closed, and open social presence attribute conflict. The society is a big environment, prison is the small environment, small environment may not change the environment, but can only adapt to the environment, this is in recent decades the world's "open prison" and community participation in prison facilities of the causes of the rise of. The prison open degree gradually increased, greater than a certain threshold, some day in the future the prison does not the prison. In short, the prison efficiency determines the penalty system pillar imprisonment will be weakened. That is, before nineteenth Century, the death penalty and bodies punishment generation, twentieth Century is the free punishment era, 21 or twenty-second Century will become a non free sentence generation.
  Six, other department law and criminal law
Other department law and criminal law: a two-way interaction between other departments law changes caused by changes in Criminal Law (cause and effect); other departments law operation needs the guarantee of criminal law (purpose and means), and accessory criminal law concepts (some scholars called the administrative criminal law). The legislative mode of the subsidiary criminal law, our country is very different from the foreign. In China, only the provisions of other laws constitute a crime in the criminal law outside without penalty (can't) regulations. Seriously speaking, China lack of complete sense of both the subsidiary criminal law crime and punishment. The advantages of this mode of legislation in our country is the criminal law focus, convenient operation; drawback is that the criminal law (including the single criminal law) to maintain stability. With the development and the number of separate criminal law of economic and social relations and the increase of the change of legislative mode, the advantages and disadvantages will be gradually weakened, will become more and more obvious. Can be expected, the mode of legislation to change sooner or later.
Other department law, criminal procedure law and criminal law is also a kind of relationship, namely the relationship of procedure and entity, means and purposes. The procedural law and the reasonable pattern of litigation is the two function of the criminal law (see ninth questions) to achieve important guarantee. The program is a cornerstone of democracy.
  Seven, other disciplines to promote the science of criminal law
The development of modern science a major trend for interdisciplinary promotion, discipline boundary fuzzy, there are many cross disciplinary and interdisciplinary. The study of science of criminal law is more closely related disciplines of philosophy, science theories, Economics (theory of cost, benefit analysis, marginal utility rate), sociology (social structure, social culture, social action theory), politics (state theory, political relations, political governance, political management, political democracy theory), semantics, psychology (psychological process psychological factors and mechanism of action of thinking, etc.). To solve many problems and the evolution of criminal law are helpful to the knowledge of other subjects, the relationship between the subjective attitude and psychology based on the constitution of crime as an example. Classical psychology psychological process of human based on reason, focuses on the study of cognition and volition; on the basis of modern psychology, further study of the affective factors and process. The solution to the indirect intentional understanding content have inspired. Prevailing view indirect intentional understanding content includes only the possibility of prediction result of damage, a few scholars believe that also includes the foreseeable harm results occur. The latter to have for life to recognize the inevitable but the results are laissez faire attitude example to illustrate his point of view is consistent with the actual. The former is by inference to refute, think "laissez faire" to two possibilities exist (results may or may not occur) as the premise, if know to occur on the denial of the two possibility, there is no laissez faire premise, there would be no indirect intent. Say this problem need to clear the two conditions: (1 ) direct intent and indirect where major differences between intentional point? Direct intent is to intentionally, deliberately indirect intent for laissez faire, hope or indulge, is the emotional factors rather than cognitive factors; and according to the psychological concept of will (will be to determine objective and thus controls the operation of mental activity), only direct intentional (with a criminal purpose) have the will factor, the indirect intentional lack the will factor. (1 ) is generally believed that two kinds of intentional difference mainly in the will factor, this is the error theory, should be emotional factors. (2 ) whether to admit there is a conflict between the affective factors and cognitive factors likely? Knowledge is the premise of emotion, emotion is established on the basis of understanding, this is the relationship between the two coordinate. But sometimes the two also appear conflict: aware of something good, but the emotional aversion to it; also the opposite situation. This is a common phenomenon in real life. That is to say, emotion and sense side, also may have a non rational and rational cognition conflict. Using logical reasoning (cognitive inference emotion) to deny this irrational situation exists, may not be in line with the logic of life. In fact, from the original meaning, affective belongs to non rational category. Human behavior, including the criminal act, are not rational. To perfect the theory of mind elements depend on the achievements of the modern psychology of absorption and integration constitute a crime.
External relations of the criminal law also should mention, foreign criminal law and criminal law theory and criminal law and criminal law theory. On the basis of Marx's theory about the economy is the idea of social superstructure, foundation can think, have the meaning of criminal law in developed countries the criminal legislation on the economy of developing countries. Of course is not to copy. Accordingly, the influence of western criminal law of two legal systems and the theory of criminal law of our country and its theory is actually exist. The two theory models have different characteristics, one is the logical starting point of the theoretical thinking different, the Anglo American experience, is the concept. Two is the theoretical pursuit of value is different, the Anglo American utility, is good. The pursuit of practical value, it is easy to reach a consensus; but the theory depth is limited. The pursuit of perfection, contribute to the theory of evolution; but also have weakness, this cumbersome, the concept of the game. The concept of behavior in the first German criminal law scholars and then spread to other countries of continental law system the decades long struggle for example, "forgetful offence" (non cognitive negligence not to commit, estimate that less than 1/10000 of all cases) behavior has become one of the hot point of theoretical disputes. Theory can explain the behavior of not guilty as the natural behavior, theory is difficult to solve the fault behavior (non cognitive negligence) behavior of crime, the theory of social behavior is barely able to smooth things over. The contemporary Germany some young scholars expressed their predecessors, difficult to understand why there is a kind of rational behavior.
  Eight, the national will and objective law
This relationship is regarded as the internal relationship between the criminal law, but also can be regarded as the external relations. The will and the law, there is the relationship between law and natural law in the West since the theory, the relationship between law and channel relationship in ancient China are in essence is the will and the law. Nature of criminal law is the embodiment of the will of the state. Even in modern times, the will of the state to represent the public will deter crime, but in the state power and civil rights are not always consistent with the background of the criminal law, the alienation phenomenon is difficult to avoid. In the criminal legislation, the harmful behavior of citizens to crime of breach of privilege and is rare to be punished, and some properties of similar crimes punished, compared with the citizen is biased in favor of public officials, such and such, and criminal judicial team impure, and crime with flow pollution phenomenon is not very rare, so in fact there is a fact: on behalf of the public may change to suppress public, crime will be likely to change to condone crime, this is called alienation of criminal law. One way to restrain or alleviate the alienation phenomena is the criminal law, criminal law not only reflect the will of the state, but also stressed that conform to the objective laws. What is the objective law that the criminal law? The history of western legal thought of "natural law", "the spirit of law" is an attempt to solve the problem of the theory, thinks that we should criticize the reality of the legal system, not the fundamental interests of social law is not legal spirit, bad law is not law. Modern people's sovereignty theory is put forward, so as to restrict the state power. More specifically, the democratic principle of criminal law reflects the trend of social development, it can be regarded as the objective law of criminal law should follow. The democratic principle of criminal law, in addition to the usual said statutory crime, punishment fits the crime, the penalty humanitarian three, I think that also need to add: everyone is equal before criminal law. This is a kind of relationship, relationship with the objective nature, if the development of this relationship can be regarded as representative of the trend, law.
  Nine, the structure of criminal law and criminal law function
The structure of criminal law has two meanings, form structure refers to the combination of the general provisions and the specific provisions of criminal law. Substantial structure refers to the combination of legal crime ring and the statutory punishment quantity (namely two configuration status). Statutory crime ring is the criminal law degree of rigor, statutory punishment is harsh punishment degree. From ancient to modern times, combined with the French "strict" density and penalty severity degree of "Li", there are four modes: lax not Li (the French don't torture punishment not severe); and Yan and Li; severe but not strict; strict but not severe. Yan and Li, is relative, is not no degree. When the two structural conflicts, crisis would occur in criminal law. The criminal law (essence) structure is the criminal law function, objective according to structure of criminal law is the concentrated reflection of criminal policy, criminal law is penal reform based theme (2), the significant value that is to study the structure of criminal law lies. The structure of criminal law is a basic category of criminal law theory, is a subject of criminal law to be developed.
The criminal law function is social function of criminal law structure generated in the operation of the. The value target of criminal law is order and justice, criminal law function embodiment of the value goal of criminal law. The two main functions of modern criminal law should be: protection function, namely, the maintenance of social order, the protection of society from or reduce the crime victims; security function, namely protect all citizens and the human rights of crime. Protection functions reflect the order value goal, security function embodies justice value target. The relationship between two kinds of functions, is an important issue in criminal law theory. Protection function relates to the overall interests, safeguard function relates to individual interests (all citizens of all citizens, but also the crime than speaking). The protection of prisoners' rights is not exculpatory, security function does not weaken the protection function. The need to protect the rights of criminals is decided by the nature of the criminal legal relationship. The subjects of the criminal legal relationship is the state and criminals, the legal relationship between is a kind of special nature of the relationship between rights and obligations, namely the power and responsibility (obey), is a kind of unequal relationship (in this sense, the criminal law is the dictatorship, is the national dictatorship of prisoners). It is this unequal relationship (authority and obedience, compulsory and forced) to ensure the protection of criminal law can be realized; and also because of the unequal relationship between the legitimate rights and interests of people by the state makes crime against possible, which decides that the criminal law safeguard function. Conditions for the realization of the criminal law safeguard function is restricted by the power of punishment. The penalty power control in the substantive law, mainly reflected in the legality and justice of procedure (the legal principle of crime and punishment in the form of case law countries). The penalty power control in the procedural law, embodied in the strict judicial procedures, rules of burden of proof, the right to silence, right to defense, the right of appeal.
Protect the relationship between function and security function, is the opposite of each other, the relation of unity of opposites. The protection function is the basic function of the criminal law, but it is not infinite. Because the power is self expansion characteristics, such as not is restricted, it may lead to the alienation of the protection function, become despotic dictatorship. So, the value on the security function is to make the protection of criminal law implemented correctly. Two functions coexist, two kinds of interests (social interest and individual interest) to get balance, so as to realize the value goal of the criminal law.
The relation between criminal law and criminal law function: the structure of criminal law is the material basis of criminal law to realize the function of criminal law, the feedback information to realize the function of criminal law is an important basis for the structure adjustment of change. The structure of criminal law is not strict not stern and strict and severe of these two models can not be afraid there are two kinds of function of the criminal law. Severe but not strict such patterns in crime reduction under the condition of high pressure over a long period of time will be difficult to continue the situation may appear in criminal law.
  Ten, crime and punishment
The relationship between crime and punishment, the front has been the two discussion. The fourth problem "crime and criminal law", as the corner in the criminal law as a whole, system and the external environment (crime) relationship. The ninth problem "criminal law", as the corner in terms of quantity, the proportion of crimes and punishment about the relationship between the amount of. Here, in the internal law of this system to observe the relationship between the two basic elements of crime and punishment, as the corner in internal essence. Changes on the conception of crime and the penalty idea of the changes may affect the criminal law, but the relationship is not directly from the crime and penalty. The discussion here is the relationship between crime and punishment in criminal law, was observed from two aspects.
  (a) the relationship between crime and punishment in the Legislative Council on, is a two-way control relationship. Crime is criminal behavior, criminal penalty as the behaviour of the state, two kinds of behavior in essence there is a two-way relationship between the control, both as the main control is the control object. Control of the main information, acting on the controlled object, will occur as a result of the feedback, and affects the information output, in order to adjust. As the subject of crime, crime, penalty and received by the probability of punishment and other feedback information, self regulating: change of criminal methods (such as improvement means, improve skills, transform, strengthen network, strict organization, etc.) to reduce the chance of punishment. As the subject of control punishment, punishment after committing crimes, change the feedback information, self regulating: tight or loose French, adjusting the penalty or weight, in order to increase the punishment effect. A country's Criminal Law (enacted and amended) face is the change in the crime, the punishment is in flux. The two all adjust constantly. However, the two control cases are also different: the penalty as the main controller, the information source is single (only for the crime), when the crime punishment aggravation, rising crime or punishment to the positive feedback (feedback control process), the penalty may tend to limit saturated state, thus the penalty crisis. As the subject of crime, the information source is varied and complex, punishment is just one of them, in addition to punishment in addition to the existence of a large number of economic, social, cultural incentives, not the general penalty crime may exist between the positive feedback, so the crime may not saturated state, that is to say the increase in crime does not have what limit. Visible, condemned sin in the micro control, such as policy is active, while in the macroscopic and strategic is passive.
  (two) the relationship between crime and punishment in the application of theory, the concrete realization of the relationship between crime and punishment. The crime is the crime of the crime, the punishment is based on crime, but the object of punishment is the criminal, so the relationship between crime and punishment to achieve the format is: sin the responsibility and punishment. Responsibility, by the Chinese and foreign scholars have various interpretations, however, is nothing more than two categories. One is the "responsibility to blame", negative evaluation of crime, this is the sense of responsibility, responsibility is the responsibility (criminal responsibility). Another kind is the "responsibility to blame the possibility," according to the inner crime is reprehensible, which is the subjective sense of responsibility, responsibility is not equal to the crime. Objective sense of responsibility concept is proposed from the national perspective, the subjective sense of responsibility concept is put forward from the angle of. The responsibility and punishment of the former approach is the responsibility to the penalty category, was "sin the responsibility and punishment" format, responsibility and the responsibility to sin, to crime, "crime and punishment is responsible" format. The former is punished according to the nature of liability, liability nature of the latter is the ability of crime.
  Qualitative and quantitative factors eleven, the concept of crime
The qualitative and quantitative relationship between quality and quantity. The nature of things depends on the matter (nature), but the quantitative change can cause qualitative change.
The nature of the concept of crime depends first on criminal behavior, but behavior should not be subject to criminal penalties usually account. This thought, and the same. But not the same way: qualitative and quantitative justice foreign legislation, our country legislation is qualitatively and quantitatively. The two methods each have their pros and cons. In foreign countries, judicial discretion is big, easy to conflict resolution theory and method; but the lack of boundary violations of criminal and crime in legislation, defects of crime concept generalization. In China, the advantages and defects of the opposite is the case. Many crimes have "serious", "serious consequences" indicate the amount of elements, but in fact it is impossible to quantify, only quantitative declarative function, the result is a crime blurring the line (flexibility constitute statutory crime).
  There is no concept of crime quantitative factors, is one of the manifestations of Chinese and foreign criminal law thought significant differences. The concept of crime with quantitative factors, is to reduce the attack surface, is a reflection of China since ancient times "the law does not govern the" ruling experience, it is rooted in the management of state and social life as far as possible to rely less on law the law culture. With the development of society, especially in the economic crime legislation process, and quantitative factors of crime concept is more difficult to design, so as to make the legislation has become confused.
  Twelve, the structure and the operation of criminal law theory of crime
The theory of crime constitution theory of crime structure refers to the structure, and the operation of criminal law (Criminal Justice) relationship is the relationship between theory and practice, the relationship is the process and outcome. In the west, elements of the three legal systems of the criminal constitution is largely the same, but the combination of elements of the structure and properties of different, different. Generally speaking, research on the constitution of crime factors, while ignoring the structure, but the theory of crime research, especially comparative study, theoretical critical structure comparison. Double layer structure of crime three element structure, with Britain and America, (the first third problems already mentioned) is a generalization of "conviction" justice theory, that the crime circle gradually shrinking, the formation of self restraint mechanism of legal operation, manifests the penalty power is restricted, and embodies the two function of the criminal law. The four elements of dual structure is "shows that crime specifications" that judicial outcome theory, does not reflect the penalty power restriction mechanism, because the judicial practice basic does not exist such a mechanism, the theory is the practice of sublimation and not out of thin air.
Classical style: three yuan structure elements is illegal behavior appearance, is objective, responsibility is subjective. Well organized, but less scientific. The modern type three element structure: a subjective element, illegal has subjectivity, enhance the scientific nature, but also the theory of complexity, to "intentionally" as an example, the so-called constitutive elements of illegality and responsibility, deliberately deliberately deliberately. Double layer structure, although appear thick lines, but avoid the theory of hybrid.
  Thirteen, the purpose of penalty and punishment mechanism
The mechanism of penalty refers to the mode of operation, the basic connotation is the relationship between the structure and function of punishment.
The significance of the purpose of punishment, the formulation and adjustment of criminal policy and the criminal legislation and administration of justice has guiding value. The purpose of penalty also have limitations, because the objective is subjective, so may not be able to deliver. Nearly two centuries, that social practice all over the world, in an attempt to change the purpose of punishment (such as the criminal law the new party old criticism) to control the effect of crime, this way! One of the reasons is the target (goal) and process (the process) gap. The process has the objectivity. The operation process of direct embodiment of criminal penalty function.
The penalty function (social role played by the penalty) can be divided into two categories, one category is a basic function, as long as the penalty will have some functions, such as punishment, deterrence; another kind is the additional function, there shall be additional resources to produce function, such as correction, modification. If the lack of additional resources or additional insufficient resources, may not have additional features, application of punishment can not achieve the effect of correcting criminals. Practice has proved this point. Factors influencing the penalty additional function is very complex, such as how to humane treatment of execution of punishment? The quality of personnel (to improve the quality of education, training, have huge resources)? How fair punishment decision? The penalty structure is reasonable or not? Wait. The penalty structure is the combination of penalty method. The so-called combination form, refers to the sequence and proportion of share. In the contemporary world, the structure can be divided into punishment and light punishment structure of two types. The penalty structure is the specific conditions (historical tradition, cultural background, experience of the rule, Social Psychology), reflect the purpose of penalty, the criminal policy. The penalty structure in the theory of punishment is behoove should occupy an important place in the. The penalty structure determine the punishment mechanism of internal environment, form the basis of the overall penalty function. Generally, the crime situation grim background, also helps to realize the basic function of punishment; if excessive, will reduce even at the expense of additional functions; light punishment for additional functions; if too light, especially when the crime is rising, will damage the basic function of the realization.
From the operation of the purpose of penalty is not fulfilled. The problem research, should be the focus from the purpose of punishment to punishment mechanism.
  Fourteen, criminal legislative interpretation and Application
The relationship between the two is: for the interpretation to criminal legislation as the basis, applicable interpretation also promote legislation; criminal legislation to achieve its value through the application of interpretation to be. The criminal legislation is death, macroscopic method, applicable law, the case law is explained. The criminal law (legislation) through (which is based on the conviction and sentencing interpretation) into concrete case verdict (micro legislation). Interpretation of criminal law is the essence of the principle of legality under the premise of judicial discretion. At present there is no explanation of this concept, mentioning that the Supreme Court and the Supreme People's Procuratorate judicial interpretation. Criminal justice in many specific problems belong to problems of interpretation of criminal law judge, there is no need to report to the "two high" judicial interpretation. In the judicial practice widely, accurately exercise the application interpretation, which will greatly improve the efficiency of the criminal law of our country, but also reduce the pressure of "judicial interpretation". Of course, it is not an easy task, one needs to be professional quality of the judicial personnel to improve, change on the other hand also depends on certain concepts.
  (a) substantive application interpretation is the micro legislation: 1 convicted of criminal norms -- Explanation of application. The characteristics of criminal law criminal norms is, abstract, isolated, static, regulate each other clearly. Characteristics of crime fact of life is, concreteness, connectivity, dynamic, corresponding criminal norms may appear to be this or that state. Abstract, isolated, static specification used changeable shape each other involves events, there will be used to explain the problem. Mainly in three aspects: (1 ) counts factors. Descriptive facts factors explain less, normative factors (need to value judgments, such as: "legitimate", "conscience", "open", "sex" and so on) and open factors (such as "the other", "other" object) need to have the application interpretation. (2 ) like crime crime (crime and non crime boundary). The existence of deterrent, refute responsibility (including law defense)? A quantitative case on the amount in the concept of crime (seriousness) identification, etc.. (3 ) forms of crime. Stages of crime, complicity and the crime problems often require application interpretation can be finalized. The 2 sentence of punishment applicable Interpretation -- specification. The legal punishment is the kind of punishment, there are amplitude characteristics can be seen as a (relatively) indefinite penalty. Sentencing is indefinite penalty to determine punishment (punishment), is the essence of interpretation and application.
  (two) applicable to explain the basic (most important) is the principle of balance principle: 1 value basis (utilitarian and justice) balance, taking into account not found innocent and not longitudinal criminals. 2 and the balance of laws. Coordination theory and method of conflict (lawful unreasonable, reasonable illegimate) is a big problem. The processing mechanism, the civil law countries in criminal law have super law responsibility deterred, the theory of anticipated possibility; English, beauty is common sense principles of various legal defense, and explained the application of case of (ordinary principles) etc.. The formation of CO regulation and law conflict mechanism is a country's legal system is an important sign of maturity.
  Fifteen, the criminal law and the crime control model
Many problems in front of both criminal law or criminal law belongs to the external relations of internal relations, are in reality. This point of view toward the future.
So far, in the world scope, the criminal legislation and criminal theory mainly by means of punishment and its application are expected to control crime. The penalty is part of national power, so the crime control model is defined as the state standard. Western countries from the last century, the criminal classical school to positivism school and contemporary neoclassical such as social defense motion, the crime control focused on the nation's penalty and criminal justice. There are two types of relationship between political power and social control: the big government and small society, the state control of the whole society; small government and big society, national control only a part of social life. Pre capitalist or highly centralized command economy era of big government and small society, national standard crime control model to adapt, to good effect. At the height of the development of the market economy of small government and big society background, the effect of this control mode is poor, because the crime is rooted in the society. The western criminal positivism school since the historic mistakes all sorts of criminal law theory is exaggerated the national penalty function. With the development of the market economy, control state of society will be narrowed, control efforts will be weakened. In the ideal model of crime control when the "state and society" double standard, the proportion of state and society are adjusted along with the social development and progress. Crime control model different directly restricts penalty burden and expectation on the penalty value. The burden is not unlimited, and the effect of punishment will be similar to the marginal utility economics principle of diminishing restrictions. The above analysis concluded that: in the context of contemporary society in the fundamental way to improve the crime control benefit is the conversion crime control model. The essence of the comprehensive management of social security is in the punishment to mobilize social forces to control crime, state and society standard crime control model. The essence of the comprehensive management of social security is in the punishment to mobilize social forces to control crime, constitute a prototype both national and social standard of crime control mode. It has gradually become the consensus of the world. Thoughts of criminal law and criminal law state in twenty-first Century will be the basis of.
Due to the inherent capacity and space is limited, many problems are put in perspective, can not be discussed, so this paper call on "".

Notes.
(1) refer to the criminal law "on some major issues", "Journal of Peking University" 19-93 third.
(2) refer to the "principle of contradiction and the reform of criminal law", "law" in 1994 fifth China.

[classification] in general provisions of criminal law
[source] law and social development 199602
The year 1996 [writing]

Reprinted please specify from Peking University Legal Information Network