"General provisions of criminal law" one of the classroom notes

                    Time: September 14, 2007

                   Lecturer: Professor Huang Huasheng

                   Finishing: Officer Lifang

     The whole course is divided into fifteen thematic learning

Special1: the evolution of Western ideology of criminal law

     2: the basic principle of criminal law

     3: crime concept and constitutive elements of crime

     4: the object of the crime and the objective aspect

5: the subject and subjective aspect of the crime

6: the exclusion of the subject of crime

7: stop form of intentional crime

8: in the common crime

9: the number of crimes

10: the overview

11: the penalty type (structure)

12: the system of penalty measurement

13: the system of execution of punishment

14: the interpretation of criminal law

15: security measures

 Participate in the textbook: 1, "Qu Xuewu" general provisions of criminal law

           2, "criminal law" the theory of Qu Xuewu

           3, the modern criminal law textbook: Zhao Bingzhi "general provisions of criminal law" Renmin University of China press 07 Edition

           4, Li Xihui "the theory of criminal law (on)" Renmin University of China press (including punishment fix six)

           5, Zhang MingkaiCriminal law, Third Edition

 The first lectureThe western ideology of criminal law

Mainly refers to the European and AmericanIdeology of criminal law in modern time

After the European modern refers to bourgeois revolution, and China modern refers to after the Opium War

In the west, first proposed the idea of rule of law

The characteristics of Western ideology of criminal law:There are two university school debate: one is the criminal classical school, one is the criminal positive school. The former is mainly popular in eighteenth Century, sometimes referred to as the old school, with the method of speculative proposition; the latter is popular in twentieth Century, sometimes called the new school. The latter are further divided into criminal human school (on one's own quality, such as PU Russell says "man is by nature a crime" ) and School of Criminal Sociology (social causes to crime), mainly using the empirical method.

And then, the classical school as the basis, frame, with positive school for innovation, the formation of two University School of compromise and compromise.

(a) the classical school

The main representative of the classical school of Italy: Kant Beccaria, Bentham of Britain, Germany (1724-1804), the German Hagel (1770-1831), the German Feuerbach (1804-1872)

The classical school advocates are: advocating the legality of the feudal penal Science: criticism, mainly for the crimes of objectivism and arbitrary punishment commensurate with the crime and penalty humanitarianism and the will of freedom and moral responsibility

The research method, pay attention to rational thinking, freedom, democracy, equality, human rights, theory basis is the social contract theory, the theory of natural law, the theory of natural rights.

Beccaria.764 years' on crime and punishment 'a Book of legality, points out the punishment effect is inevitable but not severe, proposed the abolition of the death penalty in the country under the rule of law (was proposed by the first person)

Bentham.Advocate utilitarianism, that the purpose of punishment is to prevent crime. "Utilitarian" refers to the use, benefits, and he thought that human nature is utilitarian, people had to avoid the bitter pleasure nature, lawmakers should also follow this rule, let offenders suffer, comply with the law of pleasure, let the pain more than happy to prevent crime, the lure of big sin with heavy punishment, prevention of our sin with light punishment. Corresponding with the utilitarianism is some people advocate justice doctrine

Kant.RetributionThe pursuit of Justice

Hagel.On Kant's Retribution some development, to further clarify the relationship between crime and punishment, such as do not think the punishment is not respect for criminals

Kant and Hagel is a jurist and philosopher.

Feuerbach.His father was a philosopher. He inherited the thought of Bentham, put forward the principle of legality as "nullum crimen sine lege, nulla poena sine lege"

1860, 70 years ago is the classical school heyday.

(two) the criminal positive school (at the end of nineteenth Century to the first half of twentieth Century)

Criticizes the classical school

Representative of the criminal positivism school: Italy criminal law Sanjie (Cesare Lombroso, Garofalo, Fei Li), Japan, Germany's Lester Makino Echi

The criminal positive school that mainly has: the reason for the theory of crimeThat crime because of their quality, social reasons, rather than the freedom of the will cause the behavior decision theory and social responsibility theory (theory of social defense) in order to maintain the social, have to be investigated for criminal responsibility in crime, the subjective doctrine protection should be given criminal necessary (focus on personal danger and objectivism) subjectivism is different, subjectivism is not equal to the subjective blame, objectivism is not equal to impute the objective and individual prevention theory: that prevention should be objective, individual, such as recidivism, is one of the few people pack the most.Correction theory, education theory of punishment -- the term when the semester to educate the prisoners, the penalty theoryIs the theoretical basis of the parole systemPhil cited an example: doctor in two patients, a serious illness of a mild disease, but the constitution is different, but insisted that ill twenty days, light disease ten days, in fact ill after ten days will be good, but not people hospital; light disease after ten days did not heal, but must they discharge. This is not very funny? In fact, the present situation is: crime and penalty is a different compromise. On parole, the security punishment and crime cases (a disposition to defend social security) such as wandering behavior can be punishedAs a precaution, prevent sanctions Most countries now advocating sanctions, dualism, the coexistence of penalty and security measures, mainly to the penalty. Our country has no explicitly put forward the security measures, but the reeducation through labor, forced medical and other similar security measure system

Methods the criminal positive school: an empirical approachThe importance of investigation, pay attention to the experience material

Garofalo (School of anthropology):The reason the criminal personality aspect, crime people lack of altruistic emotion, such as integrity. Mainly deal with the nature of crime. The crime can be divided into evil behavior -- natural crime and not evil behavior -- the legal facts of a crime, such as violation of tax management behavior.

Phil (Sociology):Is a representative of School of sociology, studies the social environment. The three element theory (including natural causes, genetic causes, the most important social factors), social factors, such as relief for the poor. The penalty is useless, theory of crime saturation of individualization of punishmentAs a example

Lester.The "criminal policy", began to compromise, to positive school based, compatible with the classical school. Advocates of penalty and security measures and two yuan.

Makino Echi.In twentieth Century 30, 40 time, the school is further play to the "education", the offender is deserving of sympathy.

The classical school to the first half of the twentieth Century, the development of the later period of the classical school, it is improved, mild classical school.

Positive school through compromise for the development of the "new social defense theory", to determine the legal principle of crime and punishment, punishment a different interpretation of room for large, but subject to certain restrictions, return to society, the penalty and security measures and.

The reason for this lies in the development of the America corrective theory failed, and in twentieth Century the German Nazi borrow for empirical theory, is also engaged in a dictatorship, the killing of jews. So after the Second World War, crime in law and other reasons to recover.

At present, the co-existence of these two theories, and tend to be the same. The present China, is standing in the classical school's position, absorbing some theoretical demonstration.

After the Second World War, mainly has two characteristics: one is the penalty theory rise (Retribution), because the classical and empirical are light punishment, so severe rebound, such as American reinstatement of the death penalty, three out (i.e. three crime is life imprisonment). Two is the restorative justice movement, now is not the mainstream, but A new force suddenly rises. Before is retribution, punitive, and this movement advocated the crime is not punished, but repair. From the criminal and victim sit down to discuss, how to repair the consequences, if the victim's loss making compensation or reduced to a minimum.

On this topic, refer to Ma Kechang editor of the "history of modern western criminal law theory".