Analyzes the regulations of objective punishment condition both in criminal law

 

Wu Qingshu

 

 

(Law School of Huaqiao University, Fujian Quanzhou 362021)

 

 

 This paper is published in "the law"2012No.4Period, please indicate the source cited journals.

 

 

Abstract  To:Objective punishment condition was originally a German legislation phenomenon, in the Japanese criminal law, the criminal law of Taiwan area of our country is continued in Taiwan area during the period of Republic of China in the Republic of China "criminal law", in the legislation, because of the strong influence of the German and Japanese criminal law, the provisions in the objective punishment condition and the German and Japanese criminal law come down in one continuous line, even the legislation technical objective punishment condition to play to the extreme, with objective punishment conditions far more than the German and Japanese criminal law, but the theory of objective punishment condition, Taiwan particularly controversial among scholars. Since the mainland criminal theory system itself determines the objective punishment condition of crime does not exist in Chinese criminal law, but the existence of penalty objective punishment condition sense.

 

 

Key word.Objective punishment condition; crime; penalty obstructed

 

"Legislation objective punishment condition" first appeared in the German criminal law, and by the German scholar in accordance with the principles of criminal jurisprudence to summarize, refine and summarize, therefore, "can say, objective punishment condition, is the product of refinement, the system of criminal law".[1]247But the legislation technology soon be China criminal legislation in Japan and the period of the Republic of China and the reference is still in use today, German and Japanese criminal law doctrine and become China's Taiwan region an important concept in. But the objective punishment condition really is one of the only countries penalty terms, or influence element of the crime constitution, criminal law scholars great controversy in Taiwan. Whether China criminal law there is objective punishment condition, if it exists, how to explain the relationship between objective punishment condition and the constitution of crime, if there is no nature, how should treat objective punishment condition. These issues are worthy of cross-strait criminal scholars to do further communication and discussion.

 

 

Theory of objective punishment condition, Taiwan region of China's "criminal law"

According to China's Taiwan region research circles, objective punishment condition, is referring to the objective existence of unwanted behavior people know, neither belongs to the lawless elements, also do not belong to the factors of liability, but can determine the behavior of the punishment degree of facts, these facts constitute an one of the national power of punishment conditions. Taiwan criminal law is a continuation in the Taiwan area during the period of Republic of China in the Republic of China "criminal law", strongly influenced by German and Japanese criminal law in the legislation, the provisions in the objective punishment condition and come down in one continuous line with the German and Japanese criminal law, and legislation objective punishment condition to play to the extreme, with objective punishment conditions than German and Japanese criminal law. But the objective punishment condition theory system in what is the status of crime, and criminal law system, is a controversial question.

 

 

Textbook of criminal law and of Germany and Japan, China's Taiwan scholars in criminal law textbooks are specially introduced the objective punishment condition, but the position of objective punishment condition in criminal law textbooks are different. For example, Professor Chen Ziping is not only the objective punishment condition on the system of criminal theory in the field of elements are introduced, that the special status of objective punishment condition is a kind of behavior, not all crime phenomenon, but also will be placed in the penalty area. In this study, that the objective punishment condition is also a kind of penalty obstructed.[2]But the late Prof Lin Shantian will be objective punishment condition on the three elements of crime, namely, the constitutive elements of illegality and responsibility, to "outside the crime of penalty requirements" section introduces the objective punishment condition. The forest Yuxiong argues that substantive objective punishment condition, belonging to the punishment of acts in violation of the provisions of the criminal law, if an objective punishable conditions of the elements, in addition to confkrmity of constitutive elements, illegality and responsibility, also need to comply with the objective punishment condition, the establishment of crime can be, and on the legal effect of punishment.[1]306But, overall, the Taiwan school most scholar thinks, objective punishment condition, is the penalty on the criminal policy reasons, both with the illegal act, the responsibility of independent evaluation standard, it has nothing to do with the crime, it is not the crime elements or elements. Therefore, people have no understanding of the conditions of the fact, had no effect on the establishment of a crime.[3]

 

 

Analyzes the regulations of objective punishment condition two, Taiwan area of our country in the criminal law

According to the academic area of our country Taiwan said, in the Taiwan criminal law, is generally considered to contain objective punishment condition. There are about eleven. But in the eleven criminal counts and expression, there is a part of crime is considered to be objective punishment condition, but also some considered elements or the illegal elements. Long term since, Taiwan scholars on these counts properties are also debated, the different understanding and the influence of the cognizance and punishment of the crime. The following pseudo properties contain special crime the crime of.

 

 

1．第 123 Regulation: not as civil servants or arbitrator, to conduct official, asked about or accept bribes or other unjustifiable interests, and to civil servants or arbitrator after the performer, to civil servants or arbitration request period or accept bribes or other unjustifiable interests theory. This is specified, a quasi bribery among them, "and in the provisions for civil servants or arbitrator after the performer" is considered as a typical objective punishment condition.[4]But Professor Gan Tiangui think, "and in the provisions for civil servants or arbitrator after the performer" still belongs to the elements, because the crime is behavior of personnel after becoming civil servants or arbitrator after the implementation of their duties behavior. ②

 

 

I agree with Professor Gan Tiangui, stated that "while for civil servants or arbitrator after the performer" is just the objective punishment condition a disguise, not pure, can be reduced to advance the bribery crime elements and the element of illegality, because only when the behavior after the staff really become civil servants or the arbitrator to their duties, will damage position can not be bought from potentially dangerous into actual harm, for that matter, "and for civil servants or arbitrator after the performer" is not only ex ante bribery styling elements, but also enhance the elements of illegal degree, i.e. is a line with the elements of the illegal elements.

 

 

2．第 131 Regulation: civil servants to supervisor or supervision of the affairs, knowing that violates the law, directly or indirectly, their own or other private illegal interests, thus the benefit, in one to seven years in prison, and fined a sum of seventy thousand yuan. This is the civil service regulations, the profit crime, "and therefore the benefit" is considered to be a kind of to restrict punishment scope objective punishment condition. But the author thinks, "so the benefit" Is the official crime for profit to investigate results, is the accomplishment of a crime of the crime elements, in other words, only civil servants "and therefore the benefit" can be identified as the accomplishment of a crime, otherwise, may be identified as attempted crime, according to the criminal law of Taiwan penalties on crime and attempted crime is not (if it is punishment, criminal law will make special provisions), if not the benefits of civil servants, not subject to criminal punishment, for that matter, "correction and benefit" is the official crime for profit elements, it is a punishment condition.

 

 

3．第 135 One is about regulation and enforcement duties obstruction of official crime, which stipulates: for civil servants perform their duties according to law, the violence, is less than three years imprisonment, criminal detention or a fine of three hundred yuan of the following. Article2Paragraph: intended to perform certain duties of civil servants or hamper its law enforcement duties or make some civil servants to resign, but the violence, the same. Among them, performing their duties in accordance with the "legitimacy" of the conditions, usually considered the objective punishment condition. But the author thinks, duty behavior is against the legitimate direct influence nuisance law, determines the behavior whether to set up against the official implementation and duty crime of coercion, therefore, performing their duties in accordance with the "legitimacy" of the conditions should be regarded as a kind of elements.

 

 

4．第 171 Article1Item (in Taiwan's criminal law "" is equivalent to the mainland in the criminal law "section", following the same -- cited note): the prisoner is not specified, and falsely accused of a crime to the civil servants, a years in prison, detention or a fine of three hundred yuan of the following. Article2A: the prisoner is not specified, and forged, altered or evidence of a crime, the crime using forged, altered evidence, to start criminal procedure, the same. This is a false accusation stipulated, the prisoner not specified therein, "to start criminal procedure" is also considered a to restrict punishment scope objective punishment condition.

 

 

The author thinks, if the crime law understood as the right of reputation, the individual is not specified, the prisoner, and forged, altered or evidence of a crime, the crime using forged, altered evidence, even if there is no "to start criminal proceedings", also the crime, but only "to start criminal proceedings are" to launch the national penalty power, in this regard, "to start criminal procedure" is indeed an objective punishment condition. But if the crime law understood as the judicial organs of the state judicial order, then, there is no "to start criminal proceedings", apparently not infringe judicial order, does not constitute a crime, in this regard, "to start criminal procedure" can only be regarded as a constitutive element. From the Taiwan criminal law and the crime of position, the crime law or judicial order, therefore, "to start criminal procedure" should be regarded as a constitutive element, the behavior if not lead to national criminal proceedings start, this behavior is not a crime.

 

 

5．第 185-3 Regulation: drugs, narcotic drugs, alcohol or other similar things, not safe driving vehicle and the driver, a years in prison, detention or, or a one hundred and fifty thousand yuan fine. This is the Taiwan criminal law about the unsafe driving crime (similar to the mainland criminal law article133One of the crime of dangerous driving) regulations. Among them, "not safe driving" belong to elements of the act, the objective punishable condition still belongs to the crime, in Taiwan academic circles also controversial. Some scholars think, this crime under the "not safe driving", objective elements of this crime is belong to health behaviors, rather than that which belongs to the concrete dangerous offense or the abstract dangerous crime problem.[5]But also the scholar thinks, "not safe driving" belongs to the objective punishment condition, do not need to act on their own can not be safe driving knowledge, as long as the behavior of taking drugs, narcotic drugs, alcohol or other similar things while driving a vehicle, you can set up the crime, however, need to not safe driving the degree of punishment, to take. The reason is: if the "not safe driving" as the act of this crime situation, in nature is the objective elements, behavior person this situation, should know, to set up this crime. People like to know its behavior cannot drive safely, or rely on their capacity for liquor, not safe driving. While driving, deliberate self resistance but this crime, and does not constitute a crime. But if interpreted as such, not only taking alcohol, amphetamine or other stimulants, will not have not driving safety; longitudinal know something, but also from is unknown, but denies that it has deliberately with this crime. If so, then the provisions of, will become mere formality.[6]

 

 

I agree with the first point of view, this article "not safe driving" is not a safe driving elements of the crime of the behavior, is the crime of subjective factors, need to own not safe driving knowledge, people recognize that they cannot safe driving and insists on driving, is this crime can the key, worthy of disapproval or, on the contrary to the principle of responsibility. Moreover, only people taking drugs, narcotic drugs, alcohol or other similar objects cannot be safe driving vehicle, resulting in threats to public safety will, against the legal interest degree in order to achieve the required degree of punishment, to constitute a crime. Therefore, from the objective law and subjective responsibility point of view, "not safe driving" is the crime elements, rather than a simple objective punishment condition.

 

 

6．第 185-4 Regulation: driving motor vehicle accident, causing deaths and injuries and escape, in June more than five years in prison. This is the provisions on the crime of abandonment, which provisions "deaths and injuries caused by escaping" by Taiwan scholars generally believe that is a kind of objective punishment condition. Their reason is: for escaping behavior, behavior as long as people driving motor vehicle traffic accidents, and then left the scene of the accident, and the subjective understanding of these things is real-time, leave the scene of the accident which has the behavior of "social harmfulness". Cover the victim's life, the body was in further risk to ignore, connotation is illegal and crime. However, whether the establishment of crime, must consider whether the "penalty" presence. The researchers further explanation, the so-called "deaths and injuries caused by" elements, only to describe the "causal" damage results and the behavior, is the life, physical danger shall be attributed to the behavior of people escaping behavior, regardless of the perpetrator had no understanding of the cover "deaths and injuries caused by" fact, escape behavior for the victims of life, the body may cause dangerous situation is caused by the two. Therefore, "to avoid the life, body sink into further risk" context, as long as the save the victim is not completely without hope, all should give the perpetrators, "general duty to rescue", should be the "causing death" is interpreted as the objective punishment condition, as the escape behavior can have "punishment requirements for punishment" to limit the penalty, apply, i.e. if the driving vehicle accident escape, still do not constitute a crime, only in the deaths and injuries caused by escaping to a crime. Such, should be based on the consideration of punishment, criminal law does not punish escaping behavior without causing casualties, including only the loss of property caused by the situation, the penal code of last resort and modesty principle. This explanation is in order to cater to the need of judicial practice, because in the judicial practice, the staff tend to own no fault or escape without understanding death as a result of defense, and, the judge is often difficult to determine whether the staff in the escape time know the victim casualties. If the deaths and injuries caused by the predicted for elements, will lead to regulatory function in reality the greatly reduced. Especially, under the principle of law, in order to protect human rights, in the law of criminal procedure there is evidence of doubt should be made in favor of the defendant's principle of the decision, therefore, cannot be identified in the defendant's predicted whether the victim casualties, not the defendant behavior constitutes the crime of abandonment.

 

 

In the author's opinion, the accident is a negligent act, error behavior should constitute a crime generally require behavior caused by harmful results, casualties is the crime elements, at the same time, because this accusation is hit and run, therefore, escape is the crime behavior type, overall, "deaths and injuries caused by escape" is to enhance the illegal behavior of elements, is the crime of abandonment of the elements, the behavior is behavior has caused casualties result subjectively must have foreseen the possibility, but the possibility of subjective foresight and for escape behavior intention recognition are two different judgment standard. The subjective understanding of escape behavior is behavior person know you have accident, the accident is caused by the victim or victims of casualties, property loss, to cognize the escape behavior does not have what effect.

 

 

7．第 238 Article is about the ruse marriage crime, this article: in a deceptive marriage void or voidable, causing the referee marriage invalid or cancelled marriage decision, and three years in prison. "So to judge which provisions invalid marriage and marriage or revoke the decision" by Taiwan scholars generally believe that is the objective punishment condition a pure. But Professor Gan Tiangui think, this rule elements results (committed), and "resulting in" system must have a causal relationship. ③

 

 

The author thinks, "causing the referee marriage invalid or cancelled marriage decision" is just a point to the judgment of referees, requests the judicial personnel in determining whether the act established the ruse marriage crime, according to the court prior to marriage is invalid or revocable marriage referee, in order to ensure the convergence between civil law and the criminal law, to safeguard the unity, law and order and therefore, "code of conduct and to judge the marriage invalid or revoked marriage decision" requirement does not refer to the behavior of people, does not need the subjective or objective punishment condition, is a pure.

 

 

8．第 266 Article1A: in public places or public access site gambling money, fines one thousand yuan of the following. But for temporary entertainment for gamblers, this restriction does not apply to. This is the rule of common gambling crime, the "but for temporary entertainment for gamblers" is generally regarded as a kind of objective punishment condition. But in my opinion, this book is from the reverse that gambling crime elements, objective punishment condition is not good, but one can restore the objective punishment condition for elements, not pure.

 

 

9．第 283 Regulation: affray kill or seriously injured, present help potential rather than out of self-defence, is less than three years imprisonment, start implementing hurt, still in accordance with the provisions of the damage all broken. This article is about the crime of affray, Taiwan criminal law which, "kill or seriously injured" is generally regarded as a kind of objective punishment condition. For example, Gan Tim your professor thinks, if present help potential managers, system objective punishment condition, if you start out, the behavior of the objective elements. ③

 

   I agree with Professor Gan Tiangui, namely "kill or seriously injured" elements of results (committed), regardless of the presence of auxiliary power, or to start implementation, affray must and death or serious injury has a causal relationship, but the properties of causation is different, the former is a kind of mental causation (spiritual strength and help), the latter is a kind of physical causality. Therefore, "kill or seriously injured" is to enhance the affray illegal behavior of elements, are required to have the possibility of subjective knowledge or understanding, rather than a simple objective punishment condition.

 

 

10．第 285Requirements: knowing that they have a venereal disease or leprosy, hide and others for obscene acts or adultery, cause infection in people who, at one year in prison, detention or a fine of five hundred yuan of the following. This article is about infectious venereal disease, leprosy in Taiwan criminal law provisions of the crime, including ", cause infection in people who" is generally considered to be a purely objective punishment condition, does not require subjective behavior to understanding or the possibility of knowledge.

 

 

But the author thinks, "causing infection caused by violation here in person" the behavior law benefit results, is the element of the illegality of degree, can be reduced to elements, subjective also have foreseen the possibility, rather than a simple objective punishment condition.

 

 

11．第 310 Regulation: the intent to distribute to the public, but enough to damage the reputation of others blame or what things, for libel, a years in prison, detention or a fine of five hundred yuan of the following. The article3Requirement: the slander of things, can prove that it is true, no penalty. But to involve in morality and nothing to do with the public interests, the limit. This is the rules about defamation "provisions, which can prove that the real" is generally regarded as a kind of objective punishment condition. But in Taiwan criminal law, the legal nature of the provisions of the understanding is controversial, some people think that negates the constituent elements, the cover system elements; some people advocate is special the ground for elimination of illegality; some are obstructing liability matter. ③

 

 

But the author thinks, "can prove that it is true" just lawmakers from reverse the elements of the crime elements, in other words, if the perpetrator can prove the information spreading is true, then the spreading behavior is not a libel action out of thin air, it has no confkrmity of constitutive elements, also will not damage the reputation right of others, this behavior is not punishment, so it is not crime of defamation, in this regard, "can prove that it is true" is also a elements.

 

 

Evaluation of objective punishment condition three, scholars in the mainland of China

In recent years, with the continuous influx of German and Japanese criminal law, the criminal law of our country more and more with the textbook knowledge of German and Japanese criminal law. Criminal law direction, towards the beginning of the development of doctrine of criminal fine. In this context, scholars in writing textbook of criminal law, basic theory of conscious attention and adopt objective punishment condition. The representative textbook of criminal law, Professor Zhang Mingkai and Professor Chen Xingliang is this aspect.

 

 

For example, Professor Zhang Mingkai will be the legal consequences of objective punishment condition and combine the crime. In his view, because our country criminal law theory, action is consistent with the statutory crime, it is the only basis can be prosecuted for criminal responsibility. In other words, act in accordance with statutory crime, behavior crime, should bear the corresponding legal consequences; on the contrary, if the behavior does not conform to the statutory crime, behavior is not crime, crime and does not assume the legal consequences. In this sense, bear the legal consequences, is the condition of crime, constitutive elements of crime is the content, does not believe in the constitution of a crime other than the crime objective punishment condition as the conditions, which did not take illegal elements -- Liability -- penalty elements of the system elements, but will be similar to the condition of punishment into the constitution. Because the elements are illegal existence according to, it shows that illegality and degrees of truth should be included in the constitution. At the same time, China's criminal law generally increase the objective elements for restrict punishment scope of purpose, therefore, is not required to act with understanding and hope, laissez faire attitude to this kind of objective factors, as long as there is a possibility of knowledge can be, and creatively put forward a similar objective punishment condition "objective exceeding factors the concept of". In this way, according to his criminal theory system, realizes the legal consequences, to act in accordance with the constitution of a crime as the premise; in other words, as long as the act in accordance with the constitution of the crime, it can be the legal consequences of law stipulation to the reality, after the establishment of crime and not in accordance with the constitution of crime and the behavior, also need to also have punishment condition, the legal consequences can be given to a crime. Therefore, conformity leads to the legal consequences of a crime, which does not exist in other conditions.[7]448-449

 

 

In addition, Professor Zhang Mingkai also found in our criminal law punished obstructed, referring to the already established to stop crime's punishment power cause, and that this punishment obstructed is a negative objective punishment condition, and this kind of matter just stopping power of punishment of hair, incorporated in the theory of the crime itself had no effect. This kind of punishment obstructed in two categories: one is the criminal responsibility of resistance. For example, the criminal law article201Article1The provisions on the crime of tax evasion of the exemption clause, as long as you have this kind of punishment is obstructed, do not start the criminal procedure; another kind is deterrent punishment case. This kind of punishment is obstructed, still may initiate criminal proceedings, but not for the behavior of penalty, which is free of penalty for. Our theory of criminal law as a sentencing treat. For example, according to the criminal law article24The provisions of article, without causing damage to the discontinuance of crime, which belongs to the resistance situation of penalty.[7]449

 

 

But Professor Chen Xingliang originally in the discussion of our constitution of crime crime elements elements also mentioned the objective punishment condition.[8]275In the criminal law theory of our country in the early, the nature of criminal elements about crime there are different understanding, mainly in the following two kinds of views:

 

 

The first view is that the number of elements, elements of crime is the crime tenable condition, if the number of elements do not have the crime, cannot constitute a crime. Therefore, the number of elements of crime belongs to the constitutive elements of crime.

 

 

The second view is that the number of punishment conditions, elements of crime is the objective conditions of punishment. In civil law theory, the objective punishable conditions are those with crime has nothing to do, but can determine whether the behavior should be punished appearance condition. In the objective punishable condition: elements of it is not the crime itself, the lack of objective conditions of punishment, crime can be established, but not the penalty effect. In this regard, the objective punishable condition of penalty for. ⑥

 

 

In this regard, Professor Chen Xingliang endorsed the constitution said. Because the crime punishment conditions of phase separation and deserve punishment both, in does not have the objective punishment condition, crime is tenable, but should not be punished. Only in the objective punishment condition, they should be punished, the punishment effect. Provisions concerning the concept of crime of this view and our criminal law is not consistent, according to China's criminal law article13The provisions of article, shall be subject to criminal punishment is one of the important features of crime. This means that, should be punished is itself a crime tenable condition, if the lack of punishment, it does not constitute a crime. Therefore, in our country's criminal law, not that constitute the objective punishment condition elements outside the.[8]275-276

 

 

Later, Professor Chen Xingliang in his favor of crime -- guilt -- crime quantity three segments of the crime theory system, more serious, large amount and similar objective punishment condition of harmful consequences are as elements of amount, and indicates that these elements of amount is not the crime body content, does not belong to the people the content of knowledge. For example, China's criminal law article397Elements of amount shall be forgetful of one's duties crime of breach of privilege and the crime of "cause public property, the interests of the state and the people suffered a major loss of" you belong here, but also belongs to the independent elements of amount. Without this element, still belongs to the behavior of breach of privilege, but only the criminal law shall not be penalized. Only when with the elements of criminal law is to be punished. Therefore, this is the number of factors indicate that elements of breach of privilege acts against the interests of the law degree. Because of the elements of crime does not belong to the body, so it doesn't belong to the subjective understanding of the content, it doesn't matter to determine the behavior of intentionally or negligently, and shall determine the offence according to behavioral intent or negligence. In this way, a similar objective punishment condition of some harmful consequences to criminal elements in the form of independent existence in constitutions of crime. ⑦

 

Visible, Professor Chen Xingliang is the professor Zhang Mingkai advocated a similar objective punishment condition "objective exceeding factors" in the crime quantity form into the constitutions of crime, a behavior in the absence of such elements of amount, even with sin and guilt, still not a crime, of course, also can not start penalty. At the same time, the elements of amount does not belong to the body of sin, therefore, does not demand the actors is subjective view. Of course, Professor Chen Xingliang for the crime crime crime amount -- body -- the system of criminal theory, some scholars put forward the criticism, that crime quantity on the guilt behind, the amount can not be against the intentional understanding category, because of the similar amount of elements of the crime to say, act for the object of crime to have know. Professor Chen Xingliang for the crime as the constitutive elements of crime's point of view, the scholar thinks, crime amount roughly equivalent to objective punishment condition, and that this is after the act has constituted a crime, in deciding whether to do given a criminal punishment of the criminal policy considerations. This is a policy independent evaluation system in the constitution of crime, it can not be involved in the regulation of the crime evaluation.[9]

 

 

These debates, relates to the understanding of the legal nature of objective punishment condition, but also relates to whether the criminal law exists objective punishment condition judgment and the objective punishment condition attitude.

 

 

Analysis of objective punishment condition four, the provisions in the criminal law of our country

The author thinks, to judge the objective punishment condition and our country criminal theory between what is the relationship, we must first distinguish between two different sense of objective punishment condition. In fact, in German and Japanese criminal law, objective punishment condition for the existence of objective punishment condition is pure, pure penalty conditions, as well as the objective punishment condition is not pure (objective punishment condition in disguise), namely crime special behavior. The provisions in the criminal law of our country, there are objective punishment condition of pure in the criminal law of our country, the independent and objective circumstances to act outside, while not affecting the crime, but the influence of the launching state punishment right. But there is no objective punishment condition is not pure, the objective punishment condition is not pure, in China's criminal law can only be regarded as a special kind of objective elements.

 

 

(a) criminal law exists penalty (pure) objective punishment condition

 

From the legislative point of view, in China's criminal law, criminal policy considerations, lawmakers often objective punishment condition setting is pure to some crimes, these conditions are met, the establishment of does not effect the crime, launched only affect the power of punishment. As mentioned before, the punishment obstructed and pure objective punishment condition is one of the two sides, that is the same meaning, can be punished due to friction is regarded as a pure objective not punishment condition, but also can be said to be objective punishment conditions of a pure or negative objective punishment condition, because when the actor does not have such a condition, in order to launch a national punishment. The former is from the positive resistance was launched the penalty, the latter is the negative resistance was launched from punishment. Therefore, can be used in the same sense objective punishment condition and objective not punishment condition. From the judicial point of view, nor any crime must be punished. For example, China's criminal law article37Article: for minor crimes, without penalty, can be exempted from criminal punishment...... Such as, and, by 2009Years2Month28Day"Criminal law amendment (seven)" the revised criminal law article201The crime of tax evasion, lawmakers in order to implement the modesty of criminal law enginery, encourage taxpayers to actively in back taxes, in the201Article1Provisions of the Constitution and the legal punishment of the crime of tax evasion, the4Also followed by the provisions of the crime subject is exempt from punishment, "the first paragraph of behavior, issued by the tax authorities. Notice in accordance with the law, pay the tax payable, pay a surcharge, has been subject to administrative penalties, shall not be subject to criminal liability; but, five years for evading taxes paid by except for criminal punishment or tax shall be given administrative punishment two times". In the "notice issued by the tax authorities in accordance with the law after the recovery, tax payable taxes, pay a surcharge, has been subject to administrative penalties, shall not be investigated for criminal responsibility in legislation", using the "shall not be subject to criminal liability". So, here the "non criminal" what is this? Is not considered a crime, or to have constituted a crime, shall be investigated for criminal responsibility but don't need? To this, some scholars think, this "shall not be subject to criminal liability" should be understood as not as a crime.[10]Other scholars think, the provisions of this section of the negative conditions about the penalty of the criminal law in our country, is simply a deterrent punishment objective punishment condition, which aims not only to limit the right of penalty range, meet the spirit of modesty of criminal law; at the same time to urge the behavior people consciously make up the interest damage, accord with the value orientation restorative justice.[11]

 

I agree with the second view. Because from the provisions of the criminal law expression of view, lawmakers would use "shall not be subject to criminal liability," and not the "do not bear criminal responsibility", it is because "shall not be subject to criminal liability" and "do not bear criminal responsibility" the meaning is not the same, the former means that the act has constituted a crime, but shall not be prosecuted criminal responsibility; while the latter is the act does not constitute a crime, so as not to bear criminal responsibility. In the criminal code, the legislator is strictly distinguish between the two different concepts. For example, in the main body of those under the age of criminal responsibility or do not have the ability of criminal responsibility and self-defense, emergency provisions, lawmakers uses is "not to bear criminal responsibility", actually, this kind of behavior does not constitute a crime, which need not bear criminal responsibility, not to say, this kind of behavior has constituted a crime, but not age, full criminal responsibility does not have the capacity of criminal responsibility or because it is justifiable defense, necessity and not bear criminal responsibility. Therefore, this one is supposed to mean, although the taxpayer lawfully issued notice on the back by tax authorities, tax payable taxes, pay a surcharge, has been subject to administrative penalties, but its behavior still constitutes a crime, shall be investigated for criminal responsibility is not, do not give punishment has. This explanation is also consistent with the relevant judicial interpretation of the meaning of. For example,2002The Supreme People's court "about a number of issues of specific application of law in the trial of criminal cases of tax evasion explanation" article1Article3Paragraph: "the implementation of the provisions of the first paragraph of this article, section second of the Act (of tax evasion crime is the taxpayer, withholding agent), amount of tax evasion in fifty thousand yuan the following, the taxpayer or withholding agent in the public security organ for investigation before full payment is payable taxes and fines, crime plot slight, does not need to be the penalty, can be exempted from criminal punishment", which means that conform to the provisions of behavior as crime view still conditions(The concept of the meaning of criminal judgment, rather than the meaning of crime)Using the method, only the non penalty punishment to replace. Therefore, we can say, such provisions of punishment resistance is tax evasion of the reason, can also be considered to the provisions of this paragraph is to tax evasion crime objective is not punishable condition or negative objective punishment condition, when the behavior of people with the conditions as prescribed in paragraph, although the establishment of the crime behavior (concepts on Evaluation crime), launched but can prevent the national penalty power (although may cause the criminal prosecution procedure, but the results are exempted from criminal punishment), in turn, when people do not have the conditions as prescribed in paragraph, behavior not only crime (crime concept evaluation), but also subjected to criminal punishment. Visible, and did not affect the terms of crime has established itself, only to the right of penalty has the effect is negative, a penalty or is the objective punishment condition a deterrent punishment.

 

 

The pure objective punishment conditions (not) has begun to attract the attention of scholars in China, and in the general provisions of criminal law will be summarized, summed up as punishment obstructed, this generalization is to uphold the objective punishment condition of a kind of matter, as Dan Chunzu was the penalty. For example, Professor Zhang Mingkai in the "criminal law" course (Second Edition), after the penalty power and according to the special content, supplementary punishment obstructed,[12]In the recent issue of "criminal law" (Fourth Edition), it is pointed out that say without mincing words, punishment obstructed objective punishment condition, is negative, start the conditions just stopping power of punishment, not affect the establishment of the crime itself. We can make the criminal law article201Article1As to paragraph, shall be investigated for criminal responsibility of tax evasion crime must have the following objective punishment condition: the behavior of the tax authority to issue margin call notification, not pay the tax payable, do not pay late fees, not to accept the administrative punishment.[7]449Professor Zhou Guangquan also think, "from the illegal lifting angle, will make up the payable taxes, pay a surcharge or receive administrative punishment as objective punishment condition. But it can also be from the financial policy, the criminal policy perspective, the provisions as punishment obstructed. In this regard, it is worth further study". ⑧ from Professor Zhou Guangquan's expression of view, this clause can see objective punishment condition, can be seen as a punishment obstructed, which further indicates, (pure) objective punishment conditions and punishment obstructed essentially on both sides, are limiting the penalty for.

 

 

In fact, in our country's criminal law, the same rules and the criminal law article241Article6Section, which clearly stipulates: those buying abducted women, children, according to be bought women will not hinder, returning to their original residence, to buy children do not abuse behavior, not hinder to rescue them, can not be investigated for criminal responsibility. Actually, if people act contrary to be bought women will hinder, returning to their original residence, to buy children abuse, or hinders the rescue, is the behavior of crime, shall be investigated for criminal responsibility. Among them, the "can not be investigated for criminal responsibility" should explain, in the field of criminal law is still a controversial issue. For example, some scholars think, here the "can not be investigated for criminal responsibility", is used in the no crime, no criminal responsibility sense, and "can not be investigated for criminal responsibility" as negates the crime objective punishment condition, established or, if the objective punishment condition as deterrent punishment will contact the separate crime and punishment, is not conducive to the establishment of crime from the penalty angle is essentially limited, not in the system of criminal theory considering the demand of criminal policy.[13] Again, "no criminal responsibility" and "do not bear criminal responsibility" is different, the former is the basis of behavior has set up a crime not shall be investigated for criminal responsibility, and the latter is the behavior does not constitute the crime, need not bear criminal responsibility, and this understanding is also the relationship between not separate crime and punishment, said a behavior has a deserved punishment, or should bear criminal responsibility, it refers to the theory of legislation, judicial theory, but is not equal to a behavior is to accept the punishment, otherwise, it is not good to explain our country criminal law about criminal responsibility. "From" the provisions of conviction.

 

 

I agree that this is a objective not punishment conditions point of view, but do not agree to that negates the crime is not pure objective not punishment conditions of view, namely the provisions of this paragraph of obstructing the penalty of not pure objective punishment condition. To be sure, "the provisions of this paragraph is based on the special provisions for policy reasons and in order to better protect the women, children's personal freedom".[14]From the legislative point of view, the provisions of this paragraph means that, although the action before buying behavior is essentially constituted a crime, but as long as women will be bought, not to hinder its return to the original place of residence, or not to be to buy a child abuse behavior, unhindered to save on it, in the administration of justice can not be investigated for criminal responsibility. But this can not be investigated for criminal responsibility is not equal to not think the crime, the judicial authorities can take this behavior to recognize for the crime, but not be prosecuted for criminal responsibility. In other words, the provisions of this section of the aimed at buying abducted children behavior of abducting and trafficking in women, responsibility, lawmakers in particular criminal policy is based on a penalty set launch conditions, the nature of the crime it does not change the behavior, the judicial organs can be found that the act constitutes a crime, but not sentenced to penalty, in this sense, we can say, this section is devoted to buy is objective punishment condition, setting up the crime of abducting and trafficking in women and children pure. Of course, this "can not be investigated for criminal responsibility" only "can not be investigated for those buying abducted women, children's criminal responsibility", does not mean not for the perpetrator of criminal responsibility of other behaviors, in other words, if the behavior of people buying abducted women, children after the rape, unlawful detention the insult, behavior, even if later according to be bought women will not hinder, returning to their original residence, or not to be to buy a child abuse behavior, not hinder to rescue them, still should be investigated for criminal responsibility of the crime of rape, the crime of illegal detention, insult sin.

 

 

(two) the criminal law of our country does not have significance (impure) crime objective punishment condition

 

 

Objective punishment condition is not pure, as the condition of conviction objective punishment condition in our country's criminal law is not the existence of space, in other words, in our country criminal conditions, there is no need to set up an independent objective punishment condition elements. This is because, in our country, the constitution of crime is that the legal standard of crime. Any act, usually with a crime, it is crime; those who do not conform to the crime, not the establishment of crime. 9. Therefore, our country crime is a form of unified elements and substantial elements, including in German and Japanese criminal law the constituent elements of a compliance, illegality and responsibility of all, is the only legal standards to judge whether an act constitutes a crime, if one act in accordance with the constitution of the crime, it means the behavior not only conforms to a specific crime outline or framework in the form, but also is harmful to the society and a considerable degree of the establishment of the crime needed in essence.[15]So, when explaining crime constitutive elements, not only to explain from the form, but also from the essence to explain.

 

 

But the Constitution in German and Japanese criminal law firstly is a mainly form elements, indicating a type of behavior, it needs to be supplemented and reinforced by objective punishment condition of this special objective elements, to enhance the elements of nature. Our country crime is a form of unified elements and substantial elements, can these so-called objective punishment condition into the constitutive elements of crime, and is regarded as the objective elements of a special, atypical. But there seems to be our country crime equated with in German and Japanese criminal law constitution, and borrowed the theory of objective punishment condition in German and Japanese criminal law of China's criminal law also has the objective punishment condition demonstrates. For example, some scholars believe that, in China's criminal law article162Article two the provisions of the crime of false bankruptcy, the objective condition is "hiding property, bearing the fictitious debt or otherwise transfer, dispose of the property, the implementation of false bankruptcy", harmfulness and "interest" serious harm to the creditor or other people just add that false bankruptcy behavior rather than a constitutive elements of crime. In other words, "interests" serious harm to the creditor or other people just the one objective punishment condition.[16]This explanation is clearly explained in the form and position of the theory of crime, that crime is only a type of abstract, form, rather than a substantive punishability evaluation types. On the contrary, if our country crime understood as a form of organic unity, elements and substantial elements of it, will be the essence of crime as a guide to the interpretation of criminal law provisions of the constitution, only those worthy of punishment against the interests of the law interpretation to conform to the crime constitution act. In such a crime, objective punishment condition traditionally did not exist in the room, the so-called objective punishment condition can only be a special objective elements of crime. But other objective factors of the special elements and the constitution of the crime is not the same, can be called "objective special elements", this particularity lies in the behavior of people although have possibility of knowledge or understanding of human behavior, but this lack of will factor, the behavior of human cognition factor and will factor in these special behavior unable to obtain uniform, thus becoming an "objective exceeding factors".

 

 

Note  Release:

1 See Lin Yamada: "criminal law" (Volume 1, revised six edition),1998In printing, the292-294Page.

② Quoted from Qiu Zhongyi: "general principles of criminal law", according to Yuan Publishing Co. Ltd.2007Year edition, No.113-114Page.

③ See Lin Yuxiong: "ninety year criminal practice opinion review", "load" (Taiwan Law Journal2001Years of practice review special issue)2002Years9Vol.38Period, the99-102Page.

④ See Lin Yuxiong: "ninety year criminal practice opinion review", "load" (Taiwan Law Journal2001Years of practice review special issue)2002Years9Vol.38Period, the99-102Page.

5 For example, the criminal law article201Article1As to paragraph, shall be investigated for criminal responsibility of tax evasion crime must have the following objective punishment condition: the behavior of the tax authority to issue margin call notification, not pay the tax payable, do not pay late fees, not to accept the administrative punishment.

⑥ See Gao Mingxuan, Wang Zuofu editor: "new China criminal law theory and practice", Hebei people's Publishing House1988Year edition, No.594-598Page, quoted Chen Xingliang: "as the criminal elements of the crime elements" -- Discussion Based on the Chinese criminal law, international law review "load"2003Autumn years, the275Page.

⑦ See Chen Xingliang: "the law" (Second Edition, the book), Renmin University of China press2008Year edition, No.193Page; see also Chen Xingliang: "as the criminal elements of the crime elements" -- Discussion Based on the Chinese criminal law, international law review "load"2003Autumn years, the275-276Page.

⑧ See Zhou Guangquan: "the objective punishment condition" intrinsic "jurisprudence", load2010No.6Period, the131Page, footnote[51].

⑨ See Zhang Mingkai: "criminal law course" (Second Edition), Peking University press2010Year edition, No.32Page; see also Zhang Mingkai: "criminal law" (Fourth Edition), publishing house of law2011Year edition, No.448Page.

 

Reference.

[1] Lin Yuxiong: "new" general provisions of criminal law, Renmin University of China press2009Year edition, No.247Page.

[2] Chen Ziping: "general provisions of criminal law ("20082001 Edition), Renmin University of China press2008Year edition, No.106Page, the480Page.

[3] See Huang Zhongfu, "criminal law": essence, according to Yuan Publishing Co. Ltd.2006Year edition, No.45Page.

[4] See Huang Changren: "general provisions of criminal law and logic analysis and system demonstration", new Xuelin publishing Limited by Share Ltd2009Year edition, No.112Page.

[5] See Chen Ziping: "the drunk driving crime (not safe driving crime) issues -- Taking Taiwan" supreme court"98Non15Decision as an example "," foreign law "load2012No.4Period.

[6] See also: "Gan Tim your theory of criminal law" (bottom), the three people's principles2010Year edition, No.65Page.

[7] Zhang Mingkai: see the "criminal law" (Fourth Edition), publishing house of law2011Year edition, No.448-449Page.

[8] Chen Xingliang: "as the criminal elements of the crime elements" -- Discussion Based on the Chinese criminal law, international law review "load"2003Autumn years, the275-276Page.

[9] See Fu Liqing: "the theory of constitution of crime -- comparative study and path selection", Law Press2010Year edition, No.113Page.

[10]See Li Xiang: "on the crime of tax evasion in the first half of the exemption", "criminal law" Chinese loading magazine2009No.7Period, the55Page.

[11]See also: "Yang Gaofeng research" problems in implementation of the legislation of tax evasion, load "academic research"2009No.4Period, the41Page.

[12]See Zhang Mingkai: "criminal law course" (Second Edition), Peking University press2010Year edition, No.109Page.

[13]See Yao Bing: "buying abducted women and children, a discussion on several problems about crime", "Journal of China Women's University" load2009No.3Period, the30-31Page.

[14]Zhang Mingkai: "to explain the principle of criminal law" (Second Edition), Renmin University of China press2011Year edition, No.110Page.

[15]See Li Hong: "our crime constitution system without reconstruction" carrier "," legal research2006No.1Period, the33Page.

[16]Zhang Xu: "on the crime of bankruptcy fraud", edited by Li Jie: "the criminal law set realistic problem" of the harmonious society, Chinese People's Public Security University press2007Year edition, No.1423Page.