First chapterThe criminal law

 

The first sectionThe concept and nature of the criminal law

The concept of criminal law

(a) general concept: the criminal law provides that the crime, the criminal and penal laws. Specific say, criminal law is the power which the ruling class to class, the class interests of the political and economic, according to his own will, specify which behavior is crime and criminal liability, and punished by the criminal punishment of criminal law.

(two) concept classification:

According to the provisions of the criminal law of range size, can be divided into broad and narrow sense criminal law criminal law criminal law.

Criminal law in a broad sense refers to all the laws and regulations of crime, criminal responsibility and penalty of the sum total, including criminal code, separate criminal law, subsidiary criminal law etc..

Narrow criminal law only refers to the penal code system stipulated crime, criminal responsibility and penalty. In our country, namely the "PRC Criminal Law".
According to the size of the scope of application of criminal law, criminal law can be divided into ordinary and special criminal law criminal law.

Ordinary criminal law refers to the criminal law of general applicability, in fact refers to the penal code.

The special criminal law to apply only to particular people, when, what, criminal law. In our country, but also refers to a single criminal law and accessory criminal law.

Two, the nature of criminal law

(a) the class nature of the criminal law

The criminal law is the ruling class according to their own will and interests, is the ruling class to be the ruling class dictatorship tool.

Class nature of criminal law is determined by the class nature of state. All the exploiting class country criminal law is repressive tools.

The criminal law of China is a socialist type of criminal law, it is an important part of our socialist economy is built on the basis of the superstructure, reflect the working class and the masses will, to defend the socialist political and economic system, the protection of the current and long-term interests of the broad masses of the people.

(two) the legal nature of criminal law

First, the scope of criminal law to protect the social relationship is more widely.

The protection of the criminal law is that all crimes against society, not only relates to the economic basis, but also relates to the superstructure.

The criminal law can be said to be the protection of other law, not criminal backing, other departments law is difficult to be thoroughly implemented, which act as a "second line" role.

Secondly, the compulsion of the criminal law of the most severe.

The penalty can not only deprived of property, restriction or deprivation of personal liberty, deprivation of political rights, but also in the most severe cases may also deprive criminals of life.

Thirdly, the criminal law is used to fight crime direct legal.

The second section of the criminal law and perfect creation

Create a, criminal law

1, in the early at the beginning of new China, China has developed a number of specific criminal law, such as "counter revolutionary" punishment regulations, laid the foundation for the formulation of criminal law. At the same time started the criminal law draft preparations.

2, 1950 -- 1954 September, legal committee drafted two draft: "the people's Republic of China" "the draft outline of the criminal law of the people's Republic of China criminal law draft guidance"

In October 1956 3, 1954 -- November, CO drafted the 13 draft laws.

4, June 28, 1957, has written 22 drafts, ready to submit the NPC deputies, published in draft mode, but because the "anti rightist" struggle ran aground.

In 1961 5, October -- 1963 October, after several revisions, the formation of the 33 draft, but because of the cultural revolution and a stalled.

In 1976 October 6, crushing the "Gang of four", from the beginning of 1978 October, modify, supplement to the 33 draft, in July 1, 1979 fifth session of the National People's Congress adopted at the eighth meeting, released in July 6th, January 1, 1980 entry into force. So far, our country criminal law the official birth of the first step.

Two, to perfect the criminal law

The necessity and possibility of 1, criminal law perfect:

(1) the subjective -- criminal law concept is more conservative, content due to negligence, not to meet the need of market economy.

Objective (2) to turn the world upside down -- Reform and opening up the social life changes, new crime growth momentum.

(3) -- China has successively promulgated 24 separate criminal law, laid the foundation for the comprehensive revision of criminal law.

2, the amendment of criminal law stage:

First, the brewing stage (1982 - 1988.2) understanding the top legislature to criminal law the need to amend, and set about collecting and arranging materials;

Second, preliminary the revision stage (1988.3 - 1989.6) included in the legislative plan, and try to draw up "criminal law draft".

Third, focus on the revision stage (1991) focused on "counter revolutionary crime" to the crime of endangering national security discussion.

Fourth, a comprehensive revision stage (1993 -- 1996.12) to conduct a comprehensive system of the criminal law amendment draft, change frequently.

Fifth, legislation passed (1996.12 -- 1997, 3) of the Eighth National People's Congress fifth conference in March 14, 1997. October 1, 1997 implementation.

3, modify the results

The new "criminal law" consists of general principles, specific, annex three parts, a total of 15 chapters.

The increase from the old "criminal law" 192 articles to 452 provisions.

The repeal of the analogy system, established the legal principle of crime and punishment system.

4, the principle of criminal law amendment (distinct characteristics: Amendment to the criminal law)

Consistency and completeness of A, the realization of the criminal law. Making a will hold together all aspects of the criminal code.

B, adhere to the principles of criminal law and criminal law to safeguard function. Provisions of the legal principle of crime and punishment, suiting punishment to crime, the principle of equality before the law.

Based on C, combined with national conditions and learn from foreign legislation experience. Such as the international criminal law, international criminal into charges related to domestic punishment.

5, revise and improve the characteristics of

First, a timely response to the needs of economic and social development, focus on the regulation of criminal law on the important issues in current economic and social fields.

Second, the amendment to the criminal law as criminal law to modify the basic status mode.

The third sectionAccording to the task of criminal law

One, according to the criminal law

According to the 1 Law: the constitution as the fundamental law of the state, is the development of China's criminal law according to the. According to this principle,

The criminal law must take the constitution as the basis, to carry out the spirit of the Constitution and principle, safeguard constitution implementation;

Provisions of the criminal law and the explanation is not inconsistent with the constitution, otherwise it would have no legal effect;

The criminal legislation should be based on the provisions of the constitution of the legislative authority and legislative procedures, otherwise it is unconstitutional act.

Practice: 2 according to the specific experiences and actual circumstances in China's fight against crimes, is the practice of making our country criminal law according to the. According to this principle,

The development of criminal law, not on subjective imagination, also can not copy the previous or foreign ready-made things, and should be systematically investigated, conscientiously sum up our long-term with experience in the fight against crime, based on the actual conditions of china.

The criminal law should be ahead of proper, grasp the objective reality from the dynamic.

Two, the task of criminal law

(a) protection

1, to defend the national security, safeguarding the people's democratic dictatorship and the socialist system.

2, the protection of the socialist economic base.

3, to protect the citizens' personal rights, democratic rights and other rights.

4, the maintenance of social order.

(two) punishment

1, criminal struggle against all criminal acts

2, the criminal punishment is the most severe penalty sanctions.

In 3, the penalty is the only object of crime.

System and interpretation of section fourth of the criminal law

One, the system of criminal law

Criminal law system, is refers to the composition and structure of criminal law.

China's criminal law is divided into three parts in general, specific and supplementary provisions. Each part is divided into chapters, sections, paragraphs, lines, etc., item level.

1, general --

A, the task of criminal law, the basic principles, scope of application

B, crime

C, penalty

The concrete application of D, the penalty

E, other provisions

2, sub --

A, the crime of endangering national security;

B, the crime of endangering public safety;

C, destroy the order of socialist market economy;

D, encroaches upon the citizen personal rights, democratic rights of crime;

E, infringement property crime;

F, the hindrance social management order crime;

G, the crime of endangering the interests of national defense;

H, the crime of corruption and bribery;

J, crime of malfeasance;

K, the military crime of breach of duty.

3, annex -- date revised penal code starts to execute; relationship between the criminal code and the previous single criminal law revised.

The relationship between the general provisions and the specific provisions of ▲:

The general provisions of criminal law is to regulate the system of general principles about the crime, criminal responsibility and penalty, is guilty, to determine the criminal responsibility and punishment must follow the common rules. The criminal law is a normative system about the specific crime and statutory sentence, to solve the concrete behavior of conviction and sentencing standards.

Relationship between the general provisions and the specific provisions are general and special, the relationship between abstract and concrete. General guidance sub sub, embodies the principles of the principle, the two complement each other. Only the general provisions of criminal law and the provisions of sub closely together to study, can we correctly identified crime, responsibility and penalty determined.

4, the provisions of the articles of the structure: the uniform number, easy to quote accurate.

The so-called "money", the provisions on a section of the section, called.

The so-called "new", is with the serial number arrangement, such as deprivation of political rights: (a), (two).

A provision of the same paragraph contains two or more than two interesting, said front, middle, rear section in theory, or the first section, second section.

▲ proviso

1) paraphrase: a provision such as useful in conjunction with a "but" to represent the transition relation, from the "but" to this text, science called "proviso".

2) the situation:

 The front part of the supplement, such as the "criminal law" article thirteenth "..., but the plot remarkable slight harm is little, do not think that is a crime."

The front part of the exceptions, such as the "criminal law" article sixty-fifth ".. the recidivist, shall be given a heavier punishment, but negligence crime except."

To some restrictions, such as the "criminal law" section second "twenty-first emergency..., but should be reduced or exempted from punishment."

Two, the interpretation of criminal law

The concept is: to elucidate the criminal law. Meaning is to accurately understand the criminal law and the criminal law spirit.

Classification:

(a) to explain the effect of the standard, can be divided into legislative interpretation, judicial interpretation and theoretical interpretation.

1, the legislative interpretation

Concept: is made by the top legislature on the interpretation of the meaning of criminal law. Interpretation in our country that the NPC and its Standing Committee have made to the criminal law.

Case: A, attached to the criminal law, the legislative explanation of B. C, the enforcement of criminal law, the judicial organs of disagreement, the legislature to explain.

2, the judicial interpretation

Concept: is made by the supreme judicial organ to the meaning of criminal law explanation. In our country the right to judicial organ judicial interpretation of the Supreme People's court and the Supreme People's procuratorate.

Case: A, the Supreme People's court and the Supreme People's Procuratorate respectively explained. B, the Supreme People's court and the Supreme People's Procuratorate jointly explain.

Scope: only in criminal law problem and how to use the trial and procuratorial work.

Effect: only in the judicial and procuratorial work.

3, the academic interpretation

Concept: is a national advocacy organization, social organization, teaching and scientific research units or experts and scholars from the theory of meaning of criminal law explanation.

▲ legislative interpretation and judicial interpretation belongs to the interpretation of formal, legally binding; academic interpretation belongs to the informal interpretation, is not legally binding.

(two) in order to explain the method is different, can be divided into literal interpretation and logical interpretation.

1, literal interpretation: the legal provisions of the literal meaning, including words, concepts, terminology, in the interpretation of the arts.

2, a logical explanation: in accordance with the spirit of the legislation, contact the relevant situation, from the logical explanation. Is divided into natural interpretation, amplified interpretation and restrictive interpretation.

Certainly explanation is that the criminal law does not express a certain matter, but according to the guidelines, attributes of things and formal logic, the matter of course included in the specification within the scope of interpretation.

The expansion of interpretation is based on the legislative intent, as more than the literal meaning of the interpretation of criminal law.

The limit interpretation is based on the original intention of legislation, the provisions of the penal code as narrowly on literal interpretation.

 

The second chapter of the basic principles of criminal law

 

The concept and the significance of the first section of the basic principles of criminal law

The basic principle of criminal law, the concept of

(1) concept: refer to all the norms of criminal law, is of guiding and control all of the criminal legislation and criminal justice, and reflect the basic spirit of criminal legal system of our country's standards.

(2) feature:

① must be throughout all the norms of criminal law, is of guiding and control all the criminal legislation and the criminal judicature significance;

② must embody the basic spirit of criminal legal system of our country, namely "upholding the rule of law, to abandon the rule of man; to adhere to the principle of equality, justice, against the privileged; strive against favoritism."

(3) the contents: including the legal principle of crime and punishment, criminal law the principle of equality and the principle of suiting punishment to crime.

Two basic principles of criminal law, the significance of

The basic principle of criminal law must run through all the norms of criminal law, is of guiding and control all the criminal legislation and the criminal judicature significance;

The basic principle of criminal law must reflect the basic spirit of criminal legal system of our country;

It is not only beneficial to actively fight against crimes, and is conducive to the effective protection of the legitimate rights and interests of citizens;

It is conducive to promoting the development of the rule of law, but also conducive to the maintenance of the justice of the law;

It is advantageous to realize the purpose of criminal law, and to achieve the best effect of punishment.

In section second, the legal principle of crime and punishment

One, the legal principle of crime and punishment means

(1): what is the concept of crime, what crime, what is the constitution of all kinds of crimes, which kind of punishment, the penalty for how to apply and various kinds of concrete crimes to specific sentencing range, by the criminal law stipulated. For the specified sub no crime shall not be convicted and punished. To sum up, is "nullum crimen sine lege, nulla poena sine lege".

(2) the theoretical basis: three right Feuerbach and Montesquieu's separation of psychological compulsion.

(3) the thought origin: back in 1215 the British "Great Charter". After the influence of bourgeois Enlightenment thinker of France in 1789, "Declaration of human rights" embodies this principle.

(4) meaning: is conducive to maintaining social order, but also conducive to the protection of human rights;

The criminal penalty is deterministic, strengthen the penalty deterrent;

It is the basic guarantee of citizens' personal freedom.

(5) derived principles: Western -- the customary law; rejection of absolute indeterminate sentence; prohibiting guilty on Prohibition of retroactivity; weight method.

The other scholars -- a clear principle; the principle of strict interpretation of the principle of substantive due.

Two, in our country criminal law (legislation) of

(1) 97: criminal law before the 1979 Criminal Law of China basically to implement the principle of legality, but because of the existence of the analogy system of guilt, the legal principle of crime and punishment has not been paid attention to and carry out the.

(2) 1997: after the criminal law clearly stipulates the principle of legality, and abolished analogy.

And in the new criminal code and the criminal law amendment and single criminal law systematically, embodies the principle of:

First, the revised "criminal law" the crime and punishment legal.

Statutory crime for specific performance: defined the concept of crime; clearly stipulates the common requisites in constitution of crime; clearly defined elements of various specific crime.

Legal penalty for specific performance: Specifies the kinds of punishment; clearly stipulates the principle and system of punishment and sentencing; stipulate the specific crime legal punishment.

Second, the revised "criminal law" to cancel the analogy system, this is the principle of legality is an important prerequisite for the real implementation of the.

Third, the revised "criminal law" reiterated the retroactivity of criminal law in the old and mitigating the principle.

Fourth, in the specific provisions of criminal charges, the new criminal code has already been quite perfect. Provisions from 103 to 350, crime number 129 to 412.

Fifth, in particular the constitutive elements of the crime or the crime and the legal punishment of crime of setting, the revised "criminal law" and enhance the operability of the law. For a large number of crime, try to prove guilt; in criminal penalties, focus on the specific circumstances of sentencing.

Three, the legality of the judicial application

(1) the correct determination of the crime and sentenced to a punishment

The conviction, all kinds of crimes in the criminal law, the judicial organ shall take the fact as the basis, take the law as the criterion, do the qualitative accuracy, justly;

In sentencing, the judicial organs shall strictly legal punishment and legal circumstances as the basis.

(2) the right of judicial interpretation

The highest judicial authority through judicial interpretation, guide the conviction and sentence, this to make up for the lack of legislation and standardized judicial practice, has the vital significance.

The third section applies the principle of equality of criminal law

One, the meaning of the principle of equality in criminal law application

Anyone who commits a crime, shall be prosecuted; the same plot of crime, the conviction and punishment should be equal; any person from crime, should be protected by law, and shall be subject to criminal victims have the same rights as the same protection; no person shall enjoy the privileges beyond the law, not because of the special identity, the offender or victim status, or different class, ethnic, religious belief and the crimes and criminals to different penalty.

Two, the application of criminal law embodies the principle of equality
(1) equal conviction

Any person guilty of a crime, regardless of their identity, status, equal treatment, the standard of conviction for the same.

(2) the equality of sentencing

Committed the same crime and the same circumstances of the crime, should be done with crime and punishment. But if the charges the same, different plot, should be treated differently.

(3) equal execution

All the same the same crime, subjective vicious inmates, penalty should be the same; the severity of the crime, subjective malignant transformation of different, different, should be given different treatment.

In section fourth, the principle of suiting punishment to crime

One, the principle of suiting punishment to meaning

(1) meaning: make much crime, should bear much of the criminal responsibility, the court also sentenced the severity of punishment, punishment to felony, misdemeanor and light punishment, penalty according to the crime, principle of suiting; in the analysis of the severity of the crime and criminal responsibility in hours, not only to see the crime objective social harm, but also to consider the subjective malignant behavior of human body and human risk, grasp the social harmfulness degree comprehensive reflection of various factors of crime and criminals, so as to determine the extent of criminal responsibility, the severity of the punishment for the corresponding.

(2) the historical development:

The earliest can be traced back to the primitive society and slave society isometric homomorphism revenge revenge.

In eighteenth Century 17, bourgeois Enlightenment thinkers advocated, the principle of suiting punishment to crime has become the basic principle of criminal law.

③ after the bourgeois revolution, the principle of suiting punishment to crime was written into law.

Able to amend the legislation all over the world, for the development of the principle of suiting punishment to crime.

Two, to reflect the principle of legislation of criminal responsibility

First, the establishment of a scientific and rigorous system of punishment.

Nature, life penalty, freedom penalty, property penalty, qualification penalty; extent, divided into severe punishment and light punishment;

Species, divided into principal punishment and supplementary punishment.

Second, the principle of punishment stipulated differently.

The general rules of the criminal law according to the risk the size of various behavior of social harmfulness degree and the crime person, provides the severity of other punishment principle.

Third, set up the weight different sentencing range. China's criminal law provisions can be separated, can flex, greatly legal punishment of crime. This makes the judicial organs may, according to the nature of the crime, crime, crime subjective malignant degree of size, the criminal punishment.

Three, to adapt to the punishment principles of Justice

(1) correct the wrong tendency of light sentencing conviction, the sentencing and conviction in the same important position

(2) error correcting severe penalty doctrine thought, strengthening the concept of sentencing justice and law enforcement

(3) to correct the phenomenon of different court sentencing gap, realize the law enforcement in the balance and coordination

 

The scope of validity of the third chapter of the criminal law

The scope of validity of criminal law, criminal law, applicable scope, is refers to the criminal law in what time, what space and to what people have effect. It divided the space effect and time effect of criminal law.

 

The first section of the criminal law space effect

One, the spatial effect of criminal law concepts and principles
(a): the concept of validity of criminal law, refers to the criminal law on the ground and the effect on the, it actually is to solve the problem of the scope of criminal jurisdiction.

(two) principle: from the criminal law and the theory of view, mainly has the following several principles:

(1) the principle of territoriality, by the regional standard, usually in the domestic field of crime, whether locals or foreigners, are applicable to national criminal law; on the contrary, in the domestic field of crime, are not applicable to domestic criminal law. This principle is based on the principle of national sovereignty.

(2) the principle of the person, the perpetrators of the nationality of the standard, all their crimes, whether in their areas and in their own fields, all applicable national criminal law. This principle is established based on domestic law should ensure the loyalty and obedience of the citizens in the country.

(3) the principle of protection, to protect their own interests as the standard, all against their country or national interests, regardless of whether the offender is a national or a foreigner, whether committed in its territory or in their own fields, all applicable national criminal law. Substantial protection principle is using the means of criminal law to make national interests of the state and the citizens against the invaders.

(4) general principles, in order to protect the common interests of all countries as the standard, the common interests of countries who have violated international treaties stipulated crime, regardless of whether the offender is a national or a foreigner, whether the crime is in its territory or its domain, all applicable national criminal law.

(5) the compromise principle, the territorial principle as the foundation, and the other principles, that crime in its territory, are applicable to national criminal law; crime in their field, under certain conditions also apply their criminal law.

Modern world criminal law the compromise principle, so it is in our criminal law.

Two, China's criminal law of territorial jurisdiction
(a) the law stipulates: criminal law, where a crime in the territory of the people's Republic of China, except when otherwise stipulated by law, the law is applicable to.

(two) understand the law: according to the above provisions, any crime in China in the field, whether it is a national or a foreigner, in principle, application of our criminal law.

(three) interpretation of the law:

(1) "field", refers to the whole area within the boundary of China, including the territory, territorial waters and airspace.

● essence: within the territory of China's land territory, territorial waters and airspace.

● fiction territory:

The ship or aircraft in china. Regardless of the ship or aircraft where, where state, our country has criminal jurisdiction.

The Consulate in Chinese embassies abroad. Consulate countries embassies, not subject to local jurisdiction under its jurisdiction.
(2) "the law has special provisions," mainly refers to:

The article eleventh of the criminal law about "criminal responsibility of foreigners who enjoy diplomatic privileges and immunities shall resolve," through diplomatic channels.

The article ninetieth of the criminal law on the "not in national autonomous areas are applicable to the provisions of this law, by the autonomous region or province of the people's Congress according to the basic principle of the characteristics of the local nationalities in political, economic, cultural and the provisions of this law, formulate adaptive or supplementary provisions, the regulations" approved by the National People's Congress Standing please the committee.

The revised criminal law provisions of special criminal law "after the implementation of" enacted by the legislature of the state of. "Special law is superior to common law"

Exceptions to the Hongkong Special Administrative Region and the basic law of Macao Special Administrative Region to make.
(four) every to make

(1) the law stipulates: the provisions of the criminal law, the criminal act or consequence takes place within the people's Republic of China, is considered a crime in the territory of the people's Republic of china.

(2) isolation crime involves three kinds of circumstances:

The crime and the crime results in our country:

The crime in China in the field, but the crime results in foreign countries;

The crime in foreign countries, but the result of crime in china. For the three cases above, shall apply to the criminal law of our country.
Three, our country criminal law of personal jurisdiction
(a) the law stipulates: criminal law, citizens of the people's Republic of China commit the crimes specified in this law field outside the people's Republic of China, shall apply the provisions of this law, but to the highest penalty prescribed in this Law for three

Years in prison, may not be dealt with. PRC state personnel and military personnel who commit the crimes specified in this law field outside the people's Republic of China, the applicability of this method.

(two) understand the law: according to the above provisions, the citizens of our country criminal law of our country stipulates the crimes committed in our field, whether in accordance with local laws is considered a crime, regardless of the crime is a violation of any country or any country the interests of citizens, in principle, the application of our criminal law.

(three) interpretation of the law:

(1) "can not be held", suggesting the possibility of the reserved, when necessary, can also be. But for the national staff and soldiers in the extraterritorial crimes, taking into account the special identity of its national image, the maximum statutory penalty regardless of their crimes are less than 3 years imprisonment, shall be prosecuted for the criminal responsibility.

(2) China's legal independence and national sovereignty is not affected by the intervention, the foreign judgment is not binding on china. But in foreign countries have received criminal punishment, can be avoided or mitigated punishment. Thus, not only the sovereignty of the state, and set the specific circumstances of the defendant from humanitarian consideration of the seek truth from facts, reflects the unity of principle and flexibility.

Four, the protection of the criminal law of our country jurisdiction
(a) the law stipulates: criminal law, foreigners in the territory of the people's Republic of the people's Republic of China national or civic crimes, and punishable according to the provisions of this Law for three years

In prison, this law may be applicable, but according to the criminal law without exception penalty.

(two) limit law understanding -- China's protection of jurisdiction:

(1) the foreigner crimes must be infringed upon our country or the interests of the citizens.

(2) the foreigner crimes in accordance with the provisions of the criminal law of China shall be the minimum sentence of 3 years in prison.

(3) the foreigner crimes in accordance with the criminal law also punished

Universal jurisdiction in the criminal law of China, five
(a) the law stipulates: the provisions of the criminal law, the provisions of the international treaties concluded or acceded to by the people's Republic of China of the crime, the people's Republic of China in the scope of the treaty obligations

The criminal jurisdiction, applicable law.

(two) understand the law: according to the regulations, the provisions of any of our country in the international treaties concluded or acceded in crime, regardless of the criminal is Chinese or foreigners, regardless of the crime took place in China in the field or fields, regardless of the specific violation is which country or the interests of the citizens, as long as the criminals were found within the territory of China, the scope of treaty obligations undertaken in China in China, if not to extradite to the relevant countries, our country should exercise criminal jurisdiction, according to China's criminal law to punish the criminals.

(three) the applicable conditions:

(1) the prosecution of crime is the provisions of international treaties which China has concluded or acceded to the international crime.

(2) the prosecution of crime is the our country within the scope of its treaty obligations.

(3) the crime took place in China in the field of outside.

(4) the offender must be foreigners including stateless persons.

(5) for the prosecution of crime, the criminal law of our country has stipulated the.

(6) the offender is within the territory of china.

The second section time effect of criminal law

Time effect of criminal law, criminal law, refers to the effective time of failure time and the question of whether the criminal law before the commencement of the action has retroactivity.
One, the effective date of the criminal law

(a): effect of time concept of Criminal Law refers to the effectiveness of criminal law have time.
(two): one is from the date of publication is effective; two is released after a period of time to execute.

The failure time of two, criminal law
(a): the concept of criminal law failure time refers to the criminal law effect of termination time, by the provisions of the state legislature.

(two) the way:

One is by the state legislature declared some legal failure;

Two is the natural failure, the old law enforcement for similar content, or because the legislative conditions of the original special has disappeared, the old law shall be invalidated automatically.
Three, the retroactivity of criminal law
(a): the concept of retroactivity of criminal law, refers to the criminal law in force, for before it becomes effective without trial or sentence had not yet determined whether the Act applies to problems. If applicable, is back

Force; if not, there is no retroactive effect.

(two) the principle:

(1) from the old principle that criminal law shall not have retroactive effect, prior to the commencement of their behavior, treatment according to the old law of behavior.

(2) from the new principles, namely the law will be applied for before its entry into force without trial or sentence has not yet been determined behavior, retroactive.

(3) from the new and lighter principles, namely the principle have retroactive effect, but the old law is not deemed a crime or sentences is light, according to the old method.

(4) the doctrine, namely the principle does not have retroactive effect, but the law was not deemed a crime or imposes a lighter punishment, in accordance with the processing.
In China: the doctrine of.

(three) reflected in the criminal law of china:

(1) when the criminal law was not deemed a crime, the criminal law as a crime, can only be used prior to the amendment of criminal law, the criminal law has no retroactive effect.

(2) at the time of the criminal law as a crime, but the current criminal law is not considered a crime, so long as the behavior without trial or sentence has not yet been determined, should apply the current criminal law, the criminal law have retroactive effect.

(3) at the time of the criminal law and criminal law are considered a crime, and shall be prosecuted, in principle according to the old law shall be investigated for criminal responsibility. However, if the criminal punishment of the criminal law is to weight ratio, apply the existing criminal law. This is a principle.

(4) if the law has made an effective judgment, the judgment shall continue to be valid.

(four) "provisions concerning the application of time validity of criminal law interpretation of several issues":

The implementation of A, since the release date of validity or provisions, apply to the law implemented during;

B, when untreated, according to the new interpretation;

C, has been processing behavior, application of the new interpretation favorable to the defendant, apply the new interpretation;

D, have treatment, no mistakes, no changes in the.

 

The fourth chapterThe concept of crime and crime constitution   

 

The first sectionThe concept of crime

Type A, the concept of crime

(a) formal concept: only from the legal characteristics of crime to crime, nature and did not involve a crime. In general, the definition of crime with criminal law and should be subject to penalty punishment.

(two) the essence concept: is defined for crime from the essence of crime, legal characteristics and not involved in a crime. The essence of Marx's really explained scientifically the concept of crime: Crime -- "isolated individualopposition ruling." That is, the crime is the behavior that is harmful to the society.

(three) mixed concept: essence of the concept and the concept of crime Become, it points out that the essential feature of crime, and points out that the legal characteristics of crime. Crime is a social harm, the criminal law and should be subject to penalty punishment. Our country.

Two, the concept of crime in criminal law of our country

(a) in our country criminal law thirteenth stipulation: "all the harm national 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 property, infringement of citizens' private property, infringement of citizens personal rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be punished, is a crime, but circumstances are obviously minor and the harm is not great, not deemed a crime."

(two) in the criminal law of our country has three basic characteristics of crime.
(1) the social harmfulness

The concept: the characteristic behavior on criminal law protection of social relations caused or may cause such damage. The most essential feature of crime is the most basic.
The determining factor: the severity of social harmfulness of mainly depends on the following aspects:

Violations of the object a..

B. behavior means, consequences and time, place.

Results C. damage caused by the behavior.

D. human behavior and subjective factors.
The study of social harmfulness, attention should be paid to the following aspects:

One is to look at the issue from a historical perspective.

Two is to have a comprehensive view.

The three is to see the essence through the phenomenon..
(2) the criminal illegality

Concept: means the violation of criminal law norms contained in the provisions of the criminal law. Only when the harm the social behavior of violation of criminal law constitutes a crime.
(3) penalty

Concept: behavior should be property punishment, which is the evaluation of the behavior, belongs to the category of.
▲ three features of the relationship:

Combining the above three basic characteristics of crime, are indispensable.

The serious social harmfulness is the basic attribute of crime, reveals the social political crime.

The criminal law is the legal characteristics of crime, reveals the relationship between crime and criminal law, indicates that the statutory crime.

The penalty reflects the relationship between crime and punishment, the legal consequences of a crime.

The serious social harmfulness is the foundation of criminal law and penalty, the criminal law as the criterion, the penalty is the result of.

The second sectionConstitution of a crime

History, constitution of crime

(a)Capitalist country:

1 'budding:

Italy inquisitorial procedure, general interrogation determine if guilty, special trial interrogation progress. The concept of legal confirmation.

The Italy criminal law experts method and the Hughes first used the word "crimes".

2 ': German criminal jurist Klein proposed the "crime" translated into "crime", but was only litigation law.

3 'of psychological compulsion founder Feuerbach pointed out: "the sum of the elements of each behavior is illegal or facts contained in a crime".

4 'abstraction Theory: Bellinger put forward six conditions constitute a crime.

5 'progress:

① Meyer in "general provisions of criminal law" will Bellinger six elements is simplified as three elements, the constituent elements of a compliance, illegality and responsibility;

Metzger, the new constitution doctrine, the behavior, illegal, responsibility as the core of the theory of crime.

Results: 6 'crime in continental law countries set up conditions -- the constituent elements of a compliance (ill), illegality, accountability.

Two.The socialist countries:

1 'Soviet criminal jurists Terra Yining has been put forward according to the problems of specific crime closely criminal responsibility.

2 'legal nihilism of crime constitution theory influence

3 'Soviet "criminal" comprehensive discussion of the subject, the subjective aspects of crime, object, objective aspects of the four elements.

Two, the concept of crime
(a): in accordance with the concept of the criminal law, the organic unity of social harmfulness and its degree of a specific behavior and the act constitutes a crime must all the objective and subjective elements of the.
(two): VS concept concept of crime constitutes a crime

(1) contact:

The concept of crime is the basis of constitution of crime, crime is a specific concept of crime.

The basic concept of property crime is the crime to specify.

(2) the difference between:

The concept of crime -- to answer is what is the crime, the crime which the basic properties of the limit problem, generally between crime and non crime, is the general standard to determine a crime, is the highly generalization of the basic characteristics of crime.

-- further answer the crime to establish, the establishment of which requires the legal constitutive elements of crime, which is to solve the problem of specific standards, specifications of crime, is a specific standard between crime and non crime, this crime and other crime.

(three) feature:

(1) the constitution of crime is the organic unity of a series of subjective and objective conditions.

The so-called organic unity, is that crime constitution is not the establishment of the crime needed simple addition, but by various elements in accordance with the constitution of crime requires mutual connection, interaction, together constitute a crime that the specifications and standards of the organic whole.

(2) only on the behavior of social harmfulness and its degree has the decisive significance established fact characteristics needed for the behavior of crime, is the element of constitution of crime.

(3) the elements must have crime is regulated by the criminal law, characteristics of facts only after selection to law and become the constitutive elements of crime.

(four) constitute elements: object of crime, subject of crime, objective aspect of crime, crime subjective aspect.

[dispute] -- (Zhao Bingzhi "criminal law teaching reference book")

1) the two elements: subject of crime, criminal objective negative negative.

2) the three elements:

The subject of crime, object of crime, the harm behavior

The subject of crime, objective aspect of crime, crime subjective

The subjective aspect of the crime, the objective aspect of crime, object of crime

3) the four elements: the object of crime, objective aspect of crime, subject of crime, subjective aspect of crime

Three, research significance of the constitution of a crime

First, provide a basis for the crime shall be prosecuted for criminal responsibility person.

Second, provides the standard for the classification of crime and non crime, this crime and other crime.

Third, illegal investigation to provide legal protection for the innocent people from.

 

The fifth chapterObject of a crime

 

The first sectionThe object of the crime overview

The concept, the object of the crime

The object of the crime: protection by the criminal law in our country, the harm for the crime of social relations. The object of the crime is one of the essential elements of a crime. If a behavior does not harm the social relations protected by the criminal law, cannot constitute a crime.

Two, the significance of research object of crime

Nature is conducive to the understanding of crime

It contributed to the accurate conviction

It is helpful to the correct sentence

The second sectionClassification of object of crime

(a): in accordance with the division standard range against the crime of social relations, the object of the crime is divided into: the general object of crime; the object of crime; direct object of crime

(two): three kinds of object is the relationship between general and special, general and special, abstract and concrete, the whole and the part.

(three) classification significance:

(1) can reveal the properties of object of crime, the correct understanding of role object of crime in criminal justice, to solve various problems such as the conviction in criminal justice in sentencing.

(2) reveals the commonness and individuality of crime, understanding the crime from a deeper level, summarize its regularity, development of criminal policy.
In general, the object of crime
(a) the object of crime concept: all common violations, namely whole protected by criminal law of our country's socialist social relations.

(two) position: the general object of crime is the highest level of criminal law protection of the object, to reflect all of the object of the crime is common, so the general characteristics of crime evidence, is the basis for the study of other hierarchical object of crime.

Two, the similar object
(a): the concept of object of a crime of common violations, which is protected by criminal law of our country's socialist social relations of a part or a hand.

(two) position: Division of crime of the same object, is the scientific classification of different protection according to the crime in the criminal law of the social harm of. China's criminal law according to the principle of this kind of crime object, will be divided into ten categories. Only on the basis of the same object, make a scientific classification of crimes, establish the system of criminal law and strict, scientific.

Three, the direct object
(a): the concept of a criminal violations directly in the protection of the criminal law of our country specific social relations.

(two) position: the direct object of crime is the most important factor to determine the nature of the crime, reveals the specific crime endangers the social relationship and the degree of social harmfulness of the crime.

(three) species:

(1) according to the concrete social relation to crimes, direct Dan Fu

A simple object, refers to a crime only in direct violation of a specific social relations. 
The complex object, a crime direct violation of specific social relations more than two.

(2) according to the crime in the direct object by the harm degree, the complex object is divided into primary object, secondary object, random object.

The main object of complex object, refers to a specific crimes against in a more serious, the criminal law protection of social relations.

The secondary object, which is a complex object specific crimes against in mild degree, the criminal law protection of the general social relationship.

Random object, refers to the object due to some opportunities may be a complex object specific crimes against the.

(3) to the specific crime of social relations is the material standard

Mark on the material object violation is material damage results.

Signs of non-material object infringement is not a form of material damage directly.

In section third, the object of crime and crime object

 a concept, the object of crime
(a): refers to the concept or object specific crimes in specific provisions of criminal law directly effect the objective existence of the specific person. 

(two) feature:

(1) the objective reality, as it is crime, has become the objective existence, not to transfer to the will of the people.

(2) shows, as though it is complicated, but can be recognized.

(three) features: 1 the object of crime is the specific person or thing.

2 the object of crime is the person or thing crime directly effect.

3 criminal formation is a person or thing of criminal law.
(four) classification:

① in material form, the object of crime including the object and two kinds of human.

The object refers to money, goods and all have value, ownership relationship.

The human body is refers to the human body, the crime function mainly displays in its life, health, reputation damage or stress.

② according with no special restrictions, divided into general and specific crime crime object object.

Common object of crime refers to people or things without any restriction.

The specific object of crime refers to the specific scope of some internal things or people.
The relationship and difference between the two, the object of crime and criminal object
(a) contact:

(1) as the concrete object of crime as the specific social relations of the object of the crime of material performance;

(2) as a specific crime object is the subject of specific social relations of the object of the crime or the participants.

(3) the criminal act is the object of crime is the specific objects or specific people to violate certain social relations.
(two) the difference between:

(1) the object of the crime determines the nature of the crime, the object of crime is not.

(2) the object of the crime is a necessary element of any crime, but the crime object is only the necessary condition of some crimes. 

(3) any crimes will make the object of the crime is endangered, but the crime object is not necessarily compromised.

(4) the object of the crime is the basis for the classification of crimes, the crime object is not.