On the relationship between the legal principle of crime and punishment and the crime

                                                          

    The concept, the principle of legality

   Article third of the criminal law provides for the principle of legality: "the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished." The principle of legality, is the basic requirement of democracy and respect for human rights doctrine! "The crime punishment legal principle" is also called the crime in law doctrine, namely whether an act constitutes a crime, the crime of the crime constitutes what, what punishment by law, shall be pre specified, that is so called "nullum crimen sine lege, nulla poena sine lege". This comes from the Latin legal maxim, is the highly generalization of the meaning of the legal principle of crime and punishment.

   Two,The concept and characteristics of the crime

   Crime is a criminal law, reflect the behavior of legal interest infringement and rebuke probability, organic whole objective elements must have set up for the behavior of crime and the subjective elements of the.

From the definition of the crime can be seen, the crime has the following features:

    (a) the constitution of a crime is the subjective elements of the organic whole

   The constitution of crime is composed of subjective elements, one of the "elements" is the establishment of the crime must have the conditions; each element contains a number of elements. Is not the simple addition of all elements of the organic unity of crime, but the subjective and objective elements; the subjective element of crime constitution requirements in accordance with the mutual connection, interaction, coordination, to form a unified whole.

  (two) the constitution of crime is illegal and legal liability of the mark

Firstly, the constitution of crime is stipulated in the criminal law. The legality of "sin" legal, mainly refers to the constitutive elements of the crime of statutory. Provisions of the criminal law on the crime, criminal law and criminal law is the common realization. The general provisions of criminal law provisions of all elements of crime must have the specific provisions of criminal law, especially need to possess specific elements of crime. Only the specific elements of various specific crime specific crime the general provisions of the criminal code of the common elements and the specific provisions of criminal law is closely combined, can we grasp the constitutive elements of crime. According to China's criminal law, any kind of crime must have four elements, namely, object of crime, subject of crime, objective aspect of crime, crime subjective aspect.

Secondly, the crime is not an abstract concept of law, but the illegal and legal liability of the mark.

   (three) the constitution of crime is that the legal standard of crime

   Any kind of crime can be composed of many facts to illustrate the characteristics, but not every feature in fact are the elements of a crime, only on the behavior of social harmfulness and its degree has the decisive significance established fact characteristics needed for the behavior of crime, is the element of constitution of crime. The constitution of crime, refers to the abstract, summed up the common, the nature of crime and the harmfulness of the decisive fact from similar cases of every hue of facts. All the elements of a crime from different angles that social harmfulness behavior; crime constitute the overall description of the behavior of social harm to the extent of crime. The constitution of a crime as concept and separated from the nature of the social harm of crime of pure form, is not scientific, it will constitute a crime can not reflect the nature of the crime and that the consequences of, this is tantamount to fundamentally negate the role and the core value in the identification of the crime constitutes a crime. Examine whether an act is harmful to the society and constitutes a crime, must and just to see if it has to comply with the constitution of the crime fact (constitutive elements of crime). In our criminal law, crime is a sufficient condition of crime, act in accordance with the constitution of the crime, do not need to add other conditions, can constitute a crime.

 

  The relationship between the three, the legal principle of crime and punishment and the crime

  By analyzing the concept of feature definition on the legal principle of crime and crime constitution, found that the principle of statutory crime and crime constitution has the following relationship:

 (a) the constitution of crime is the basis of the principle of legality

  Provisions of the principle of legality: the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished. The constitution of a crime is that the legal standard of crime, but also illegal and legal liability of the mark. Therefore, the constitution of crime is the basis of the principle of legality.

 (two) the legal nature of constitution of crime, is the inevitable requirement of the principle of legality

  On the legal nature of constitution of crime, as a crime tenable condition, no doubt is a statutory crime. The legal provisions, including the general provisions of the criminal code provisions, including the criminal law of the. Statutory crime, is the inevitable requirement of the principle of legality.

  (three) the theory of constitution of crime is a product of the principle of legality

   Starting from the principles of legality, the crime specifically, special provision is very important. However, focusing on the specialized elements (i.e. specific elements of the importance of the), it not only as of the criminal law on things, but also can serve as a general provisions of criminal law is the cornerstone of the general theory of criminal law's efforts, the efforts from the bell ringer started by Meyer substantially completed, and the this is the theory of the constitution. Thus, the crime constitution theory is itself the product of the principle of legality, it is bound to the law as the.

  (four) the principle of legality is conducive to correctly determine the criminal law

  "The constitution of the crime, is refers to the provisions of our criminal law by the mutual connection, interaction of the elements composed of specific nature of the crime and social harm of an organic whole". On the basis of the theory of constitution of crime will launch "four elements", namely, object of crime, objective aspect of crime, subject of crime, subjective aspect of crime. The old criminal law analogy system, "the specific provisions of this law has not stipulated the crime of conviction, can according to provisions of this law which is most similar to the sentence, but shall be submitted to the Supreme Court for approval". Then in accordance with the constitution of crime "four elements" to define the crime, the judiciary can identify acts constitute a crime in the criminal law, but also on that criminal law does not expressly conduct constitutes a crime, which is essentially on no new object of crime of the criminal law provisions to protect the cognizance. Now for the judicial practice of our country, the legal principle of crime and punishment, is conducive to the law enforcement to correctly determine the crime and sentenced to punishment, is conducive to the proper judicial interpretation.

 (five) the crime constitution embodies the principle of legality significance

  The principle of legality, the behaviour that is value judgment right by lawmakers absolutely enjoy, judicial just judge behavior fact is in accordance with the criminal law provisions for the type of behavior model of crime. The judiciary and the citizen only on the basis of "three elements" is the subject of crime, subjective aspect of crime, the objective aspect of crime, we can determine whether the fact behavior and criminal code type of behavior patterns match. This can prevent the judicature of abuse of power, and can protect the legitimate rights and interests of citizens, and this is the significance of the legal principle of crime and punishment.

  (six) the legal principle of crime and punishment to crime and crime of "three elements" phase separation

   The legal principle of crime and punishment to crime and the objective aspect of crime, subject of crime, subjective aspect of the crime. The crime is the behavior that is harmful to the society, refers to the fact that caused by this or that damage to the society to the social order and social relations and destructive behavior, whether a behavior is harmful to the society need the value judgment. Value judgment is that the subject according to the value of a certain standard, evaluation and judgment of the objective existence of things, so as to meet the specific needs of subject. Behavior fact is objective existence, only through the value judgment, it could become a crime behavior of meaning.

 

    Four, through the analysis of "Asus case", to further understand the relationship between the legal principle of crime and punishment and the crime

 The case back to the wadding:

In 2006 February, Huang bought a Asus computer, but later found CPU problems, then Huang went by the alias of "dragon think think" requirements amount to $5000000, in March 7th of that year, Huang was suspected to blackmail and impose exactions on.

In December 26, 2006, Huang was released on bail.

In November 9, 2007, Haidian people's Procuratorate in Huang made the decision not to initiate a prosecution, then Huang Jing to Haidian procuratorate put forward national compensation.

In November 11, 2008, Huang Jing to the consumer to submit application Asus "investigation". In November 25th, the association to Huang Jing issued a reply, said that because of Asus company rejected by the Association for mediation.

In November 27, 2008, Huang received the national compensation 29197.14 yuan.

  Blackmail and impose exactions on crime, refers to the illegal possession for the purpose of the victim, the threat or use of coerce, forced to ask for the behavior of public and private property.

  Object elements of crime of blackmail and impose exactions on: the body of this crime is a complex object, ownership is not only a violation of public or private property, but also endanger the personal rights or other rights and interests. This is one of the significant features of this crime and the crime of theft, fraud and different. The object of this crime is public or private property. In the case of ownership of Huang Jing Asus company "claim 5000000" amount of behavior is a violation of public or private property, this point in law is not clear. So Huang Jing to Asus company "claim 5000000" amount of behavior as blackmail and impose exactions on crime object element not good enough.

  The objective elements of crime of blackmail and impose exactions on: the performance of the use of threats, coercion, intimidation and other means for the behavior in the objective aspect, forcing the victim to hand over the property behavior. Huang Jing to coerce, in this case just exposure, does not belong to the threats, threats, intimidation, but not on the victim had a leg injury, from this point of view alone is not able to constitute extortion. So the objective elements of crime of blackmail and impose exactions on the case does not meet.

The main crime of blackmail and impose exactions on requirements for general subject. Where the statutory age of criminal responsibility and criminal responsibility of natural person can constitute a crime. In this case Huang Jing is accord with the main elements of the crime of blackmail and impose exactions on adults.

   Subjective elements of crime of blackmail and impose exactions on: this crime in the subjective performance is directly intentionally, must have a strong claim to illegal property of others. If the behavior of people do not have this purpose, or the purpose of extorting money is not illegal, such as creditors as for the overdue not have debt and the use of a certain threat component of language, to accelerate the repayment of the debtor, it does not constitute a blackmail and impose exactions on. In this case, "high claim" is not a crime. If that "high claim" is a crime, must have two conditions: one is the claim amount exceeds the limit, and in violation of the relevant judicial interpretations; two is the claim has obviously illegal, such as malicious blackmail and extortion. "However, these two conditions are not in place. Restrictions China claims on product quality problems, but the high claim obviously, law does not specify the illegal, while in a foreign country, higher "punitive damages" is very common. So the subjective elements of the crime of blackmail and impose exactions on cases do not meet.

  Through the above analysis of the four elements of crime, four elements in addition to the main elements to constitute a crime was the case, the other 3 elements are not established. So this case does not belong to the crime of blackmail and impose exactions on. According to the principle of legality: nullum crimen sine lege, nulla poena sine lege principle. Haidian people's Procuratorate in Huang made the decision not to initiate a prosecution is correct.

  About this case doubts: consumers do not use real identity and name in adults, or claim is not based on the real case, in order to compensate for the fact of infringement will be fabricated, suspected of a crime. The nature and scope of the crime is worth thinking and research

 

Reference

"Criminal law" of Zhang Mingkai

"New ideas for the development of China criminal law "Chen Xingliang

"The legal information network"