The guide       Words

One, the science of criminal law and criminal law

Law is a talent, self-esteem, arouse the passion, justice, discipline. Criminal law is no exception.

The generalized criminal law (criminal law is) is the study of crime and criminal responsibility of all the problems of the subject, the object of study including substantive norms of criminal law, crime, reasons and Countermeasures of criminal proceedings, execution of punishment etc.. The generalized criminal law, refers to the current criminal law (the interpretation of criminal law), the philosophical foundation of criminal law (criminal law philosophy or theoretical criminal law), study on criminal law history (Criminal History), comparison of different criminal law (Comparative Criminal Law) subject. The narrow sense refers only to the science of criminal law, criminal law hermeneutics. This book attempts to an intermediate value of criminal law, namely the unity of the interpretation of criminal law and criminal law philosophy, will still relates to criminal law and comparative history of criminal law but when necessary. [1]19 centuries ago in criminal law, is refers to the criminal law. But along with the development of legislation, jurisprudence developed, the general criminal law in many contents, such as criminology, penology, criminal law, criminal investigation, comparative criminal law, criminal history, have gradually evolved into an independent subject, no longer belong to the areas of criminal law and criminal law, and parallel. Therefore, the science of criminal law and these disciplines have connection already, have distinction. Criminology to criminal causes and Countermeasures about the causes of crime as the object of study; the conclusion is bound to affect the criminal law theory of criminal law, but generally not directly on the causes of crime; crime just study countermeasures shall be investigated for criminal responsibility in criminal law, criminology as not from a broad range of crime countermeasures. Study of prison is prison law as the object of study subjects, mainly discusses how to execution; the premise and method of criminal law focuses on the application of punishment. The criminal procedural law in the criminal procedural law as the research object, which belongs to the procedure law; criminal law belongs to the entity law. Two closely, in order to effectively punish crimes, protection of the interests of the law. Science of criminal investigation is based on the strategy and technology crime investigation as the object of study subjects, study how to discover already crime; criminal law study how to identify the crime and the punishment of crime. The criminal investigation is the premise of criminal law, criminal law and guide the criminal investigation. Comparative criminal law provisions of the criminal law of many countries and is based on comparison of subject; criminal law to domestic law as the research object, but difficult to get reasonable conclusion case, method is compared to the norms of criminal law, judicial practice as the interpretation of criminal law. Criminal history to the history of the various types of criminal law and criminal law thought as the object of study; the science of criminal law in criminal law                    "Use the following [1] in criminal law, if no special instructions, generally refers to the significance of the criminal law.

As the object of study. But in order to grasp the sequence of events of the criminal law, criminal law may also use the method of historical interpretation.

As mentioned before, called the book of criminal law, including the interpretation of criminal law and criminal law philosophy is the science of criminal law, the specific object of study include: (1) criminal law itself, such as the concept of criminal law, the nature, status, purpose, principle, scope of application and so on; (2) criminal law and regulations, general provisions for criminal and criminal responsibility that criminal law and the specific provisions; (3) the philosophical basis of the criminal law; (4) to interpret the criminal law legislation; (5) of the criminal law judicial interpretation, mainly refers to the Supreme People's court, the Supreme People's Procuratorate on the specific application of the criminal law judicial interpretation; (6) rules, experience and the problems of application of criminal law.

Two, the interpretation of criminal law and criminal law philosophy

The interpretation of criminal law to explain the current criminal law as the main task, the philosophical foundation of philosophy of criminal law about the provisions of the criminal law to crime and criminal responsibility for the main tasks. It is not difficult to see, the two close contact. The interpretation of criminal law from the philosophy of criminal law, because there is no philosophical basis, prone to take the matter on its merits explanation, it is difficult to make further development of criminal law. Philosophy of criminal law from the interpretation of criminal law, because no specific provisions relating to criminal law, prone to empty talk, it is difficult to apply to judicial practice. Honest so-called "analysis no annotation is empty, no analytical interpretation is blind". [2] so, only the legal philosophy basis to explain the current criminal law of discipline, is the real criminal law.

The interpretation of criminal law is not the low level of knowledge, the annotation is a kind of theory of criminal law, criminal law depends on the interpretation. So, not the interpretation of criminal law have not developed the science of criminal law. A country's criminal law if backward, the main reason lies in the interpretation of criminal law is not good. On the application of the criminal law, the interpretation of criminal law is more important than the philosophy of criminal law. Transformation of philosophy from the interpretation of criminal law to the criminal law does not require our criminal law, can not be the interpretation of criminal law as criminal law philosophy. Because the "change" and "promotion", means that the interpretation of criminal law finally ceased to exist; [3] in fact, the interpretation of criminal law is not only important, but also the philosophy of criminal law itself does not have clear boundaries.

English in "hermeneutics" (hermeneutics, Hermeneutics) and "Semiotics" (Semiotics) derived from greek. The Greek etymology originally refers to the explanation of the Oracle Appollo temple, later applied to "the Bible" interpretation, belongs to the Chinese school. After the introduction of the field of Philosophy in Germany and France, because philosophy also cannot do without for objects of interpretation. Before nineteenth Century, hermeneutics had been on "Bible" of interpretation, by the beginning of the nineteenth Century, the German theologian Schleiermacher (E.Schleiermacher) to expand the scope of the study, are studied from the letters of Paul to Platon explanation dialogues explanation, the Department of the Ministry for the general development of Hermeneutics

                    [2]RthurKaufmann, Rechtsphilo~phie, C.H.Beck, 1997.S.38

[3]We need from the interpretation of criminal law in the abstract general principles of criminal law, rules of philosophy, but to make this kind of abstract, the interpretation of criminal law still exist.

Hermeneutics. Although he did not leave a complete works, but made a huge contribution to hermeneutics. He puzzled over the problem is the relationship between two types of explanation -- Interpretation and technical grammar explanation -- between. At the end of nineteenth Century and early twentieth Century, the German philosopher Dilte (W.Dilthey) under the atmosphere of the Neo Kantian philosophy, want the hermeneutics into he emphatically in the historical process of the spirit of science and the humanities and to explore the possibility of. He thinks, lies in the fundamental role of Hermeneutics: against romanticism arbitrariness and doubt harassing, subjective land, universal validity of Hermeneutics from the theory, all deterministic in history is based on the effectiveness. In twentieth Century the German philosopher, founder of existentialism of Heidegger (M.Heidegger) and his disciples will Hermeneutics from epistemology to Ontology: interpretation is not only a form of "knowledge", and is a form of existence; hermeneutics is not on the humanities thought, but based on the establishment of the humanities ontology description. Later, the German philosopher Gadamer (H-G.Gadamer) was studied, based on the thought of Heidegger he thought, to study the relationship between hermeneutics of all knowledge and our experience of the world total, confirmed the understanding is the basic characteristics exist; the understanding of the text and interpretation is not only on the issue of a scientific method, but a part of the human world experience overall; therefore, the hermeneutic issues beyond the simple methodology, which is the unity of method and the truth, is of universal significance of ontology, is the most basic problem of philosophy. In twentieth Century 60's to 70's, in the German philosopher, critique of ideology between school in hermeneutics and Frankfurt, conducted a fierce debate, later, the French philosopher Likol (P.Ricoeur) step forward bravely. He argues that the hermeneutics as an ontology, but can not deny its methodological significance; hermeneutics into the ontology of the suitable road is from the beginning of the language to explain, from the semantic stage reached the reflection phase, and finally reached the stage of all human experience; language is the most basic conditions, to understand the presence of we must first study language meaning; text once formed, and the specific history environment and the author's intention to produce a certain distance, become an autonomy language entity; understanding is the same process of the interpreter and the meaning of the text. Thus, hermeneutics is the step by step from linguistics to Philosophy and anthropology, the humanities or social science, it is applied in many fields, now not just linguistic or semantic interpretation. [4]

The development process of hermeneutics, aims to illustrate the following views: Hermeneutics is not a low level of knowledge, the interpretation of criminal law is not the low level of knowledge, but a philosophy deep; the interpretation of criminal law and criminal law in two academic philosophy is not different, and even can be said that, the interpretation of criminal law is the philosophy of criminal law. This is the book will be regarded as unity of criminal law interpretation of criminal law and criminal law philosophy reason.

                    

[4] see gold Paul: "comparative cultural studies}, life, study, New York 1984 edition, 234Th pages; Che Ming Zhou edited by modern western philosophy}, Tianjin Education Press, 1988 edition, 442nd pages; Paul + · Ricoeur fly Hermeneutics and the humanities", translated by Tao Yuanhua, Hebei people's press, 1987 edition, forty-first pages; etc..

 

 Three, the old school and new school

 (a) the old school and new generation

 We can know from the name, the criminal law theory to the old school after school; from the common sense can see, no new wouldn't name is "old school"; from the fact that modern scholars, by Phil (E.Fer · RI) will their views known as new, and put it before the opposing views, called the old school.

Generally speaking, old school can be divided into early and late old school, old school.

The old school refers to the late eighteenth Century to the first half of the nineteenth Century the old school. The old school of criminal law theory in this period, the social contract theory, the natural law theory, specifically denied feudal criminal law. Therefore, to understand the school basic ideas, characteristics of feudal criminal law is clear. Probably can be considered, the feudal criminal law has the following four characteristics: one is the interference of criminal law, namely interference to all areas of life, including interference in private life; two is arbitrary, i.e. what kind of behavior punished by the penalty, there was no prior law, often by some arbitrary discretion; three is the identity, namely the same behavior as the perpetrator, victim's identity, and lead to punishment has no light and heavy; four is cruel, it refers to the penalty method is mostly the death penalty and corporal punishment. The fundamental reason for the formation of feudal criminal law characteristics of [5] is the centralized state power, huge and absolute, the country is the only place in your personal life, the relationship between the individual and the state becomes the whole content of human social life, so the personal is very small, the rights were deprived of. In order to fundamentally deny this point, it is necessary to make the people's sovereignty is realized, the state power is limited. So the old school scholars advocated the theory of social contract, [6] argues the state power originates from the people, limiting state power so as to achieve the realization of criminal law, complementarity, legality, equality and humanity aim.

Beccaria (CBeccalia)'s "on crime and punishment" a Book of all the above characteristics of feudal criminal law. [7] he is from the social contract theory, that the state power is provided by the public in the minimum necessary internal freedom. However, "everyone wants to the public to save the freedom to less, as long as enough to let people protect themselves on the line. This a crystallization of minimal free form of punishment right....... If the penalty exceeds the set of public interest protection. This need, it is essentially unfair. The more justice, retain the monarch subjects safety more inviolability, leaving people more freedom." This decree

                    

[5] see [Japan] Hirano Ryuichi: "general provisions of criminal law Perot, Yuhikaku publishing 1972 edition, page fifth.

The old school [6] in some scholars (such as Bentham) did not approve of the theory of social contract.

[7] the new school scholars and Japanese criminal law scholars generally believe that Beccaria belong to the old scholar, but now that Beccaria is the representative of Germany to the powerful influence of modern criminal law theory of criminal law in thirty-eighth Century during the period of enlightenment thought, did not think he belongs to the old school (Ⅷ.Z.D 'Naucke, Strafrecht, and lRdnr.144.S. 34. This is because the German scholar said school dispute, refers to the first World War shadow after Lester and his supporters arguments, namely from Kant, Hagel advocated the evolution of absolute punishment theory (Retribution) and that punishment is the criminal return to the society, to defend the social security theory (purpose theory of punishment) opposition (see [de]Schuenemann: "the rule of law in criminal legislation and justice", Taiwan spring sunshine forum 1999 edition, page 82). But if we go back, think Beccaria belong to the old scholars should not have much doubt.

Interference rejection in criminal law. He thinks, only the law to crime and penalty provisions, any judicial officials are not ture just another member of the society of penalty, beyond the legal limit of penalty is not a just punishment. This rejection penalty arbitrariness. He also pointed out: "everyone should be the same people equal his position to judge, this is the most beneficial legal." It affirms the equality thus denied identity. He thinks, a correct penalty, its strength as long as enough to discourage crime is enough; for the death to prove to people that law is a serious [8] of no profit which repels the cruel penalty.

Feuerbach (A.Feuerbach) established in criminal justice rule of law thought. In order to avoid every corner of criminal involvement of national life, he advocated to limit the national penalty power through various means: the first is through the legal limit, this is no crime without law, without a law principle of legality is not punishment; second is restricted by behavior, should be based on the behavior of penalty as the standard and not to human behavior standard, stability according to law, the protection of individual liberties; third is restricted by the difference between law and ethics, crime is not a violation of ethics but a violation of law, the legislator should respect the freedom of conscience, the law is not ethical judge. As the criminal law theorists, the biggest merit of Feuerbach lies in the legal principle of crime and punishment, law and ethics distinguish ideas into criminal law theory. [9]

Britain's Bentham (.Bentham) while acknowledging the state power unlimited and can not be separated, but he thinks the state power must be affected by its existence -- that people welfare restrictions. He proposed, public welfare is the sum of individual benefits, the interest of the individual is the only realistic interests, therefore, must be concerned with the individual, rather than suppress individual. This is [10], he advocated to limit the penalty, the penalty shall not apply in the following four situations: one is no according to (groundless), there is no real crime, the penalty shall not apply; two is no effect (inefficacious), if applicable, no penalty for good, not punishment; three is not necessary (needless), namely when the more modest means -- guidance, demonstration, request, suspended, praise can achieve the same effect, application of punishment is excessive; four is too expensive (unprofitable), if the evil evil more than crime, the punishment is not necessary. Application of [11] interference this limit punishment view apparently intended to exclude criminal law. Bentham pointed out that, in the criminal law has not been established in the circumstances to carry out acts of punishment, or will have established criminal law retroactive punishment, or the judge according to their authority to give legislation not the provisions of punishment, and the criminal law in unknown circumstances of punishment, are invalid

                    

[b] more than [8]. See Synonyms at beccar Yafei on crime and punishment ", the yellow wind, Chinese encyclopedia press 1993 edition, Ninth pages, eleventh pages, Twentieth pages, forty-seventh pages, forty-ninth pages.

[9] see [Japan] Kimura Rji: "Feuerbach", Kimura Rji editor: "criminal law" entry, Yuhikaku publishing 1957 edition, fiftieth pages.

[10] see [Soviet] Gerlach Anssi Ki: "the world famous thinker biography}, translated by Yan Jingzhong, the commercial press 1993 edition, 266th pages.

     [11][] Jimmy Bentham: "the theory of the criminal code legislation -- the principle", translated by Li Guifang, Chinese People's Public Security University press, 1993 edition, sixty-sixth pages.

[12] in other words, can only be punished according to the criminal law has been enacted in advance. This is the exclusion of the arbitrary nature of criminal law. The Bentham proposed adaptation must have features and main rules, in fact also rejected the identity of the criminal law. Bentham opposed to corporal punishment or corporal punishment, because due to the country to support the victim and too expensive, or because the country does not provide for the victim and the despair and death; Bentham also believe that the death penalty, not only can suppress the desire to kill; minor crime death penalty. [13] "no particular reason, will not aggravate punishment." [14] which indicates that its position against cruelty.

Representative Takigawa Yuki is Japan early old school. He thought morality in close contact with the law, but the later is strictly distinguish the legal and moral, custom. He thinks, take the national compelling force to ensure the realization of that part is legal; rely on his heart look forward to the part of the realization is the moral restraint; past pass fact wholly intact recognized is part of the custom [15] only violations of law may constitute a crime, it is intended to limit the scope of criminal penalties, eliminate interference the criminal law. Takikawa strongly advocate the principle of legality. He thinks, the legal principle of crime and punishment is the enlightenment thought of natural law and human rights thought performance, but its spirit is to protect the weak from the strong violation. Between the strong and the weak in society interior, the legal principle of crime and punishment must become criminal rules. Between the strong and the weak here, in opposition to capitalist society is the class; according to takikawa view, in class antagonism of the capitalist society, if you do not abide by the rules of criminal law, crime, criminal law will become class oppression means. Takikawa although sometimes think the legal principle of crime and punishment is to protect the national rights, free function, and safeguard the rights of prisoners, the free function, but he also claims that, if anything, the legal principle of crime and punishment function can be attributed to the rights of prisoners, the guarantee of freedom, the reason for the existence of criminal law is that it is. The great charter. The idea that the [16] is intended to limit the arbitrary nature of criminal law. Takigawa also opposed the strict punishment. For example, he points out, the Japanese criminal law provisions of parricide (legal punishment for "the death penalty or no period servitude"), by maintaining wind and good morals in the name, for the punishment principle. [17] again, he thinks, the death penalty is the product of barbarism, rather than national conviction, the death penalty is not a deterrent force, the necessity of any studies do not prove that the death penalty, the death penalty should be abolished. [18]

In a word, the old school basically advocate of free will, behaviorism, moral responsibility, retribution, general prevention. That man is free for [19], based on free

                    

[12] see [UK] Bentham: "Introduction to the principles of morals and legislation", translated by Shi Yinhong, the Commercial Press 2000 edition, page 219th.

[13] see [UK 1 Jimmy Bentham: "the theory of the criminal code legislation -- the principle", translated by Li Guifang, Chinese People's Public Security University press, 1993 edition, eighty-fifth pages.

[14]The 1 Bentham: "Introduction to the principles of morals and legislation", translated by Shi Yinhong, the Commercial Press 2000 edition, page 228th.

[15] see [Japan] Dleto Shigehikaru et al: "Takigawa Yuki law" collected works volume first, world thought agency 1981 edition, page twenty-second.

[16] see [1 Dleto Shigehikaru et al: "Takigawa Yuki criminal law works set} fourth volumes, the world thought agency 1981 edition, seventy-fifth pages.

[17] see [1 Takigawa Yuki: "on the criminal law", the Japanese review press 1930 edition, sixth pages.

[18] see [1 Dleto Shigehikaru make up flying Takigawa Yuki criminal law works set} fourth volumes, the world thought agency 1981 edition, 580th pages

 

The objective law to implement the will, to censure, investigate its moral responsibility; to pursue this responsibility, retribution for behavior is punishment, punishment is the evil consequences of crime, to inflict pain for the content of retribution; to the crime person, can warn people, in the hope of general prevention the effect of punishment, to general prevention as the main objective.

Later the old school is based on the old school rejected new forms; style is based on and the formation of early old school theory dissatisfaction, so in the first of the new medium. According to the theory of criminal law, new generation or cause the school to contend for two reasons: [20]

One is after the mid nineteenth Century in continental Europe, especially Germany, change of social economy. Germany began from the mid nineteenth Century, development of natural science and technology progress by the industrial revolution, changing from an agricultural country into an industrial country; since the beginning of 70's of the nineteenth Century, the empire through free competition capitalism with the original into monopoly capitalism, communism stage. As a result, the modern industrial urban development, factory workers increases, the working class and the bourgeoisie, against opposition intensified, mass poverty, unemployment, family breakdown, the spread of the imperialist war phenomenon; the rising crime rate, especially the habitual offender recidivism and juvenile sharp increase. However, Germany established in 1870, 1871 implementation of the Imperial German penal code (that is, at the time of the new criminal code), as a new criminal phenomenon of recidivism, habitual offender, juvenile delinquency has not made any consideration, make people feel incapable of action in the face of new criminal phenomenon. From then on, issued the previous criminal law idea that criminal law theory of classical criticism, this is the result of practical reasons the debates between. It is not difficult to see, the crime phenomenon increases the serious threat to the social cause, will inevitably lead to social security are growing louder, the new criminal law social standard view will emerge as the times require.

The second is the development of criminology. In nineteenth Century 30, Kettler (L.A.J.Quetelet) from the field of statistics, the first development of criminology, Kettler expounded the social causes of crime in his works, it has always been that the crime is only a product of the free will of classical criminal theory gives impact. Then in the 70's, the Italy school looked up, criminal human school founder Lombroso (C.Lombroso) first sure why genetic anthropology, crime, the crime is an inevitable phenomenon in nature and the importance of the prisoner. Subsequently, Phil (E.Ferri) in his book the physical reason of crime social, Garofalo; (B.R.Garofalo) in the book proves dangerous sex offenders are central elements of crime. These ideas to explain the crime is not the center of the action, but the actors that criminals, emphasizing the center of the struggle and crime is crime risk, antisocial personality disorder, and criminal centered classical criminal law that must study the relative crime, and the crime countermeasures individualized according to the classification of criminals. Especially Phil, he will own

                    

 Many scholars (such as Germany's Hippel.Mezger.Natw.ke.Jakobs [19], Japan's Saito Makotoji) put forward, Feuerbach does not admit the freedom of will, on the contrary that any violations of the existing in human emotion, psychological reasons of human emotion is a crime (see [de]Schuenexnann (such as: the criminal legislation and the judicial rule of law country), Taiwan spring sunshine forum the 1999 edition, page 77), but Feuerbach put forward the famous theory of psychological compulsion, seems to indicate that he admitted free will.

[20] see [Japan] Kimura Rji: "general provisions of criminal law", Yuhikaku publishing 1978 supplement edition, thirtieth pages.

 

Position called the positivist school, advocates the study of empirical on crime and its countermeasures, natural science, launched an attack on the classical theory from the theory of interpretation of law. Critically inherit Kettler and Italy School of thought, in Germany to undertake a comprehensive expansion is Lester (F.v.Liszt). Obviously, supporting "criminology developed" is the scientific development. For example, Cesare Lombroso's born criminal concept influenced by Darwin's genetic concepts, the classification of criminals have psychiatric support. "Criminology developed" behind the empirical philosophy guidance. The empirical philosophy holds that all knowledge is about the phenomenon of knowledge, so all knowledge, science should be based on empirical facts as the basis, to the observed fact based system that is scientific knowledge. It is this empirical philosophy to promote the formation of the new school.

New claims determinism, behavior of humanism, social responsibility, improve the punishment, the special prevention. The new deny that there is no reason that free will, causes of the crime must be based on some kind of reason; so, only have taken place on the behavior of disapproval, accountability and cannot prevent crime, but must study the causes of crime; crime of a variety of reasons, the behavior of human character is an important factor, therefore, prevent crime depends on the elimination of character of sexual risk behavior of people; the penalty is a means of improving the character, the main purpose of punishment is to prevent crime again; for the dangerous character of people, no matter the road sense of responsibility, need based on social life, must undertake the responsibility, this is the responsibility of the society.

In view of the above claims the new, old scholars to give a strong counterattack, launched a criminal law school debate on the true meaning of the "". Germany's Binding (KarlBinding), Bellinger (EenstBeling), Pick Maier (v.Birkmeyer), Meyer (M.E.Mayer) et al., is this era of old school representatives. Later the old school and Beccaria, Feuerbach and other early old school has many points in common, such as that of free will, the objective behavior have advocated and launched on free will shall be imposed with equivalent retribution. But in nineteenth Century 40 in the Prussian nationalism as the so-called Hagel school background, the German old school produced very big change, leading to the existence of many differences between the old school and the old school late. For example, the old strict distinction between law and ethics, and the latter is the old school of law and ethics at the same level; the old school said free will, is refers to the interest of reasonable consideration, and the ability to implement behavior, while the late old school said free will, is a kind of metaphysical the reason, no free will; the old school about retribution is the general prevention for the purpose of psychological compulsion, and later the old school said with absolute retribution retribution, strong color of sin. The late old school has obvious tendency of nationalism, authoritarian, but also has the side of liberalism, such as penalty fit the responsibility, advocating forms of crime theory. Therefore, we can say, the late old school is based on the "National Liberal" consciousness. Nationalism and liberalism at first glance to contradict each other, but behind the capitalist countries in order to develop the economy, the confrontation with the advanced capitalist countries, attaches great importance to the role of the state must on the one hand, and the protection of individual liberties activities. The result, as the highest moral attitude of the State Party, on the exercise of state power by self-made. [21]

                    

[21] see [Japan] Hirano Ryuichi: "I" general provisions of criminal law, Yuhikaku publishing 1972 edition, eleventh pages

(two) the old school and new school basic opposition

Premise 1 on crime and penalty is how to explain why crime behavior. The old school and new school exists between free will and determinism.

 The old school advocated libertarianism, that people are rational, can be arbitrarily divide some allure as behavior or not behavior motivation. Of course, things are not any understanding of creation, but whether by understanding the various temptation as motivation, is free. Want, free will is the meaning, can not governed by law of cause and effect and choice behavior. That the absolute freedom of the will theory, all of them can not be influenced by the quality, environment, and act rationally. Feuerbach's theory of psychological compulsion is another indication of the absolute free will theory. In his view, the crime is a kind of rational choice, is the choice based on the interests balance; because of this, he advocated by the criminal law stipulated crime and its legal consequences, prompting no criminal action selection.

The new against libertarianism, advocated determinism. Garofalo points out, if free will is not governed by universal laws of nature of ideological activities, the activities will not affect the preexisting or accident state, the individual can decide whether he is good or bad, it is just or unjust, is dissatisfied or submissive, cordial still angry, so, this is not true, at least not evidence that this free will; if we have free will means that at a certain time of self consciousness, then, the concept of moral responsibility on the criminal system is not immediately clear possibility based on [22] Lester clearly against the free will theory as the criminal law foundation. He said, if you want to prevent crime, we must start to study from the crime itself, but can not stop at the concept of abstract; should be regarded as the product of social and individual crime, namely crime is decided by social relations and the inherent character of the surrounding the prisoner, not produced more Yu Chao causality of freedom; freedom will lead to criminal law can not be achieved the purpose of preventing crime, take effective criminal policy for social reasons and personal causes of crime, it can realize the purpose of preventing crime. [23] was vehemently denied free will theory. He pointed out: "the idea of free will (causality is the only unbelievable factors) leads to a hypothesis, namely that individuals should be free to choose between good and evil in the. However, the existence of free will deny when using modern psychology, armed with modern empirical research methods, and prove that any human behavior are the interaction of personality and the environmental results, what do you believe in free will? "" we can't admit that free will. Because if the free will is only us we have the fantasy, not the actual function of human psychology exists." [24]

2 opposite view of crime and punishment concept opposite source in the national view, world outlook. The old school and new school in person

                    

[22 ] see [b] Garofalo: "criminology", Geng Wei, Wang Xin, China encyclopedia press 1996 edition, 244th pages.

[23J see Guo Wei: "the new science of criminal policy", Shanghai law compiled Association 1949 edition, forty-fifth pages.

[24][]: "send" Phil empirical criminology, translated by Guo Jianan, China University of Political Science and Law press, 1987 edition, page ninth, fifteenth pages.

 

Opposite orientation and social orientation aspect, illustrates this point.

The old school based on individualism, liberalism, think the world based on human beings exist, the human existence itself is objective; to the survival and development of individual person, must be as little as possible to limit the freedom of the individual, as much as possible to limit state power; the authority of the state and the regulation on behalf of the criminal law, punishment shall be restricted range. Because the country is just for national survival, increase the national welfare and the existing institutions; criminal law is not the purpose but a means, the criminal punishment in violation of ethical order elliptic Kun simple and not against the interests of people, maintain the ethical order should rely on other social mechanism beyond criminal law. This is the old school strictly distinguish between legal and ethical intention.

The new exhibit anti individualism, anti liberal position, society oriented. According to the new school of view, countries not just in order to protect the national interests, but also to protect the interests of society; people are social people, only social protection can protect interests personal interests, the social interests over individual interests. The new will act antisocial personality or dangerous character as the view on the criminal liability and the theory of social defense position, clearly illustrates this point. Phil is more clear: "speaking of the criminal law, we think, in order to social self interests, it is necessary to oppose the classical too individualistic approach." [25]

The late old school although showed no anti individualism and the position of anti liberal, even quite harmonious advocate individualism and liberalism, but because of its emphasis on "social ethics (standards)" concept, the basic values in essence many tend to social standard. Because of the social ethics, after all, only to universalism and social solidarity theory accepted by people. And because the concept of attention to social ethics, it is easy to state intervention in social moral life, which has violated the social ethical behavior, countries should as far as possible the use of criminal law, in order to maintain the social ethical order. This is the late old school will be legal and ethical as the same goal. [26]

Of course, the so-called personal standard and social standard, just means between personal interests and social interests respectively, emphasizing importance of individual interests and social interests. The old school was not completely ignored the interests of society, which can not only from the old school, the purpose of general prevention this point to understand, but also can be confirmed from the old scholar's point of view. For example, Feuerbach advocates the rights violation, but he also think, rights not only exists in individual, also exist in the country. "Kant turned the people against the legislative power is regarded as a kind of illegal behavior destroying the legal regime." The new [27] is not completely ignore individual interests, because the protection of the interests of the community at the same time will more or less to protect the interests of the individual. Phil clearly pointed out: "demonstration school, precisely because it aims to seek personal and social rights equilibrium, so do not meet to support the society against the individual, it also supports the individual against society." [28], however, also could not deny that the differences between the old school and new in this field.

                    

[25][b] Enrico ferrie: "sociology of crime", translated by Guo Jianan, Chinese People's Public Security University press, 1990 edition, page 103rd.

[26] see Zheng Shanyin: "the purpose of criminal law only protection of the interests of the law?", set "of modern criminal law and criminal responsibility of criminal law", Taiwan magazine foundation 1997 edition, 652nd pages.

[27][former Soviet] Gerlach Anssi Ki: "the world famous thinker biography", Gu Pinzhong, the Commercial Press, 1993 edition, page 223rd.

[28] [] Enrico ferrie: "sociology of crime", translated by Guo Jianan, Chinese People's Public Security University press, 1990 edition, page 105th -

 

After all, in the event of a conflict between personal interests and social interests, new school will emphasize the social interests, the old school will emphasize personal interests.

3 old school and new school in criminal theory field shows between objectivism and subjectivism.

Whether old or new, are not taken in objectivity and subjective blame position, but insist on the unity of the subjective and the objective, namely to crime, require objectively accords with the facts of a crime, and illegal, on subjective responsibility and intentional, negligence. However, in between the objective factor and the subjective factor, what pay attention to what factors, can draw different conclusions, so the formation of the objectivism and subjectivism.

We think, the foundation of criminal responsibility is reflected in the external criminal behavior and its harm. Objectivism standpoint to limit the range of punishment, the principle of legality: if only the subjective malicious as basis for punishment, it confuses the distinction between law and morality, which leads to interference of the criminal law, criminal form every corner of national life situation; if the concept of crime is not objective, it is easy to cause that arbitrary judgment crime and the difficulties, which led to the arbitrary nature of criminal law.

Subjectivism, the foundation of criminal responsibility is the dangerous character criminal is repeated offenses. Subjectivism position to implement the special prevention, the realization of social defense. The purpose of penalty is special prevention, namely to eliminate dangerous sex offenders and crime, so the dangerous character to criminal penalty has meaning; only eliminate dangerous character criminal, avoid the crime again, it is conducive to the realization of social defense. In this sense, the dangerous character of the criminal is sentencing basis, without any external behavior. But the conclusion of modern scientific research shows that, only when the crime person's internal risk for the performance of the external behavior, in order to understand the dangerous character inside, only with the help of external behavior can find the dangerous character behavior, in this sense, had to external acts as conditions of crime.

Opposing objectivism and subjectivism in the criminal theory has specific performance, but also the impact of the theory of punishment. For example, about the elements, the subjective elements of objectivism will try to eliminate the elements, while the subjective will as far as possible the subjective elements in the constitution. About accidental defense, objectivist regarded chance defence is not crime, or at best, attempted crime is established, and the subjectivist, generally considered the crime accomplished. Regarding the punishment according to the attempted offense, objectivism advocates of punishment according to the result that behavior risk, subjectivists think punishment according to the behavior of people in dangerous character. And so on.

In the field of 4 elements, the concept is difficult to use recognized to express opposition old school and new school.

In general, the degree of understanding and shaping factions for the crimes, with significant difference. According to the theory of criminal law in continental law countries, crime requires compliance with criminal law the strip (a specific crime and legal punishment provisions) under the constitution, constitution is the concept of penalty regulations for certain image behavior abstract rules; the specific behavior consistent with the constitution, is the first condition of this crime. Practical significance of old school admit criminal acts, setting emphasis crime, the constitution as the guidance of criminal law theory concept; new think crime is behavior person dangerous character to sign, do not attach importance to shape a crime. For the same reason, for the elements of the set, old school advocates to state specific behavior, and as far as possible the use of elements Xi Mi, reduce or even remove the normative elements; new claims elements of simplicity, advocate the establishment of abstract generalized or only specified. For example, in the penal code in only one provision of common crime of intentional homicide, is often affected by the new criminal law theory; and the multi provisions prescribed respectively, murder, murder, murder, murder case of poisoning, is influenced by old school of criminal law theory [29]

In the constitution interpretation, old school and new school attitude difference. The old school to respect the principles of legality, advocated a strict interpretation of the constitution, especially exclude the analogy to explain, among them, some comprehensive the abolition of the analogy interpretation, there is only allowed to explain the favorable analogy to human behavior. Modern scholars agree with flexible interpretation, advocates of objective explanation according to the demand and the need of society, at least some scholars claim that analogical interpretation.

5 in the law field, the old school and new school basically not opposed. In other words, the illegality of opposites, not necessarily linked with the struggle in school. For example, opposing subjective illegality and objective illegality, has nothing to do with the struggle in school. Moreover, the new school scholars can take the theory of violating legal interests, whereas the old scholars also entirely possible to violating norms. [30]

6 in the field of responsibility, the moral responsibility of the social responsibility theory become the old school and new basic opposition point.

Moral responsibility is the old idea of criminal law theory. The old school said liability, is refers to the crime on the behavior of one; the responsibility, is to meet the illegal behavior of constituent elements of censure or condemn the behavior person; no responsibility, is not consistent with violations constitute elements of the criticism or condemnation of acts of. Specifically, the crime is the free will of human conduct based on, with responsibility ability, have free will; intentional, negligence is actually known elements of the free will of activities based on crime; criminal behavior based on the free will of activity, to be ethical criticism, a to act as retribution punishment is justified. Moral responsibility on the one hand is the thinker of the enlightenment, individualism, equality as the background, on the other hand, has existed in the legal thought in ancient times, the people are rational, since they will commit the crime based on the behavior of people, he should bear the responsibility, this is the requirement of human natural ethics. It is in this sense, the use of "moral responsibility" this term.

Moral responsibility theory was criticized by modern scholars. As Garofalo thought, moral responsibility theory can not solve the following problems: if the crime is a permanent metamorphosis or inner impulses results, if the criminal act is violent, or even is irresistible, and it is likely to happen again in the same person, then what are the reasons to abolish the social defense. In contrast, for?

                    

[29] added: "you see Gan general criminal law lectures", Taiwan Ruixing book Limited by Share Ltd on 1992 edition, 263rd pages

[30] cf. my: "interest theory", China University of Political Science and Law press, 2003 edition, twenty-ninth pages

 

Against those due to apparent complete absence of free will and can't control themselves or resist the evil impulse of people, society needs to increase defense rather than relax defense. He also points out, if free will is a kind of creating self strength, there is no evidence to prove this point; if the free will is just what we have at a certain time of self consciousness, then, the concept of moral responsibility on the criminal system not to immediately clear based on. He also contact the psychosis, drunk, hypnosis and minor problems analysis of the moral responsibility, moral responsibility to think clearly with the social defense conflict. He concluded: "the moral responsibility principle only lead to criminal purpose of containment failure." [31]

The theory of social responsibility to advocate for the new school scholars. The basic viewpoint is, responsibility, is dangerous to society, by the society by the legal status as a means of social defense punishment; crime is a result of quality and environment of people, does not have the choice of criminal crime and legal acts of freedom, so the crime on the behavior of people to blame is not possible the criminal law is dangerous; the possibility of future crime is criminal personality, social defense means; because of the criminal is dangerous in character, so in the bear social defence disposition status, it is the responsibility of.

Because of the social responsibility theory is the theory of criminal law is to defend the society centered, easy and nationalism, authoritarian combination, formed a tendency to expand the power of punishment, to ignore the responsibility of the original function, and thus are critical. However, that the theory of social responsibility, and the symptom is not dangerous in some form when it has the responsibility, the crime behavior only in the reality, intent, negligence of psychological facts, have the responsibility. So, in the interpretation of law, and not so radical ideas. In fact, the decisive difference between the theory of social responsibility and moral responsibility is, how to understand people without responsibility responsibility. "Positivism theory points out, everyone has to take responsibility for their implementation of any crime to society. Both children, mental patients, drunk or is noctivagant person, he shall bear the responsibility." The [32] and the moral responsibility of the conclusion is just the opposite.

Opposite the moral responsibility of the social responsibility theory, based on the responsibility reflects this point, form the opposite behavior responsibility theory and character of responsibility theory. Think the act of responsibility, the criminal acts of the will of the people, is the basis of liability imputation, so it is also called the individual act of responsibility and will responsibility theory. The character of responsibility theory thinks, the responsibility is the basis of dangerous character actor. To reconcile the personality theory of liability between the two, defect is focused on these two positions, that the behavior of human personality is the foundation of responsibility. Such as the Japanese scholar Dleto Shigehikaru pointed out, the behavior will not be with the actors personality phase separation to consider; since the responsibility means disapproval, it may and must will be attributable to the behavior of human personality is formed as the liability according to. For example, habitual offender, if its constant habit is decided by the quality, environment, it is not

                    

[31][] Garofalo: "criminology", Geng Wei, Wang Xin, China encyclopedia press 1996 edition, page 246th.

[32]SccThorstenSellin, EnricoFerri, PioneersinCriminology, editedbyhermannMannhein, 2nded, Patterson Smith Publish Corporation 1972, P, 280

Is the penalty object, only as the object of security measures; conversely, if the formation of regular habits can be attributed to me, is the responsibility should be sentenced to severe criticism. This is the personality formation liability elements considered as the natural conclusion. Dle To also pointed out, the personality is revealed in the specific behavior in reality, in this sense, the first responsibility is the responsibility, the responsibility of personality formation. In particular, the object of liability judgment is in accordance with the elements of the act itself, to consider is whether the behavior has the responsibility, we must first focus on the behavior. But crime is behavior person personality reality, namely in the crime behind the expected behavior of potential personality system, criminal behavior and personality can not be separated; the formation of personality though restricted by the quality, environment, but also is formed by the body's own efforts, therefore, can according to the personality attitude toward behavior be blamed. Responsibility is the first, the responsibility of personality is second times, but in the final analysis should consider a unified.[33]

Psychological theory of liability and responsibility theory, theory of nature is two opposite elements as responsibility of content. But the opposite is not necessarily associated with school opposite. The psychological theory of liability, liability entity is the behavior of human psychology, based on the psychological relationship is different, the responsibility is divided into intentional and negligent behavior, with responsibility, also has the intent, negligence, would be the responsibility of the perpetrator. But since the beginning of twentieth Century, has been taking the responsibility theory, its characteristic is the responsibility in the relationship with the legal norms. Think of responsibility theory, the legal norms to command, to eventually jump banned performance, this command, to prohibit people to a party, only able to comply with the implementation of crime can be outside the legal behavior, it is appropriate to. Therefore, in order to give the responsibility to blame, only has the psychological factors deliberately, negligence is not enough, must also be able to look forward to the actors in the specific case, implementation of legal acts; only in this kind of situation, can consider responsible criticism. This is the idea of the anticipated possibility. Responsibility theory is to look forward to the possibility for the core formation, and even can be said that two is the same theory. Now, whether old or new scholar scholar, generally take the responsibility theory. But in whether it has the expectant possibility, old school and new school standard difference.