As the Chinese theory of constitution of crime object

                                    -- read "theory of knowledge" has the sense of criminal law

Introduction

The constitution of the crime, criminal law is to learn can't escape and the most important concept attractive. The theory of constitution of crime, is half of the country of the theory of criminal law. When I just contact this theory, as it is very interested in, feel it for understanding and mastering the crime of flexibility, convenience, and even feel it is understanding the crime of the most perfect theory. During the period when the master, with the wide field of view, understand our criminal law is not perfect in theory, the theory of the constitution of crimes is more abundant. As a pillar of the theory of crime, crime constitution theory is full of controversy. Since that is a youth of the new criminal law, I don't like an ambiguous problems in her brain, doesn't like many inconclusive dispute coexist in thinking, always like to make a choice. Order problem I had in the classroom with the teacher about the elements of crimes, it is always concerned about the progress of theoretical research on aspects of crime. Chen Xingliang teacher "criminal law theory of knowledge" a book on many of the criminal law theory, important knowledge of reflection, criticism, sort out, including the theory of constitution of crime in terms of the text. Nature I concern. The book preface part -- the knowledge of criminal law to the Soviet Union -- the basic attitude of Professor Chen constitution theory of crime: crime constitution theory to the Soviet Union, introducing more logical and can play modes constitute a functional of the crime (i.e. in continental law system of criminal theory system -- the author note). Then in the second chapter in the book, chapter fourth, chapter tenth, generation of postscript part of the theory of constitution of crime problems were introduced, comparison, criticism and construction. Should the book filled with scholars actively to improve China's crime constitution theory enthusiasm, show the knowledge and the science of criminal law scholars, and the research results of the scholars in recent years. The development of the constitution of crime in our country, the theoretical problems such as perfect have positive significance. It is because of the criminal law scholars such effort, the "knowledge of the criminal law of our country has accumulated has reached a critical state, change and transformation of the upcoming knowledge of criminal law." However, the author thinks, criticizes some questionable places China's crime constitution theory in the process, should not go to the introduction of continent legal system criminal theory system at present. In this paper, some of the ideas of Professor Chen's book are questionable, explore China's crime constitution theory development.

One, to the crime constitution theory of the criticism and reflection

(a) the ideology theory of constitution of crime

In the book, the theory of constitution of crime is one of the critical angle of our crime constitution theory origin -- the constitution of crime in the criminal law -- has serious political and social ideology. For example, the scholars have pointed out, the crime of the Soviet Russian criminal law system from reforming system of crime in continental law system, "in the course of this reform, there is a tendency to" political and ideological, in criminal theory system theory in the chapter, scholars pointed out "in Russian crime theory of forms, tendency in the ideology of severe." "But the Soviet Union experts in criminal law theory system in the criticism of civil law, full of hostile political, ideological negation" etc.. These ideas into a powerful support to the Soviet Union's constitution scholars advocate of crime in china.

Analysis of this at first glance, do not have what problem: there are indeed the Soviet Russian Criminal Law in the process of reform of politics, ideology is serious, and the theory of constitution of crime should be a pure theoretical problem, should not have this property, so should be natural to the Soviet Union. However, questions have been reasonable circumstances surface covered. Under the careful analysis, we think, cannot be used as a political tool of critical theory of constitution of crime, criminal law should not be the reason of knowledge to the Soviet union.

First, politics is not the crime constitution theory itself. Although born theory began with a certain political ideology, constitute a crime, but politics, ideology is not the crime constitution theory itself. Otherwise, the upheaval in Russia in the historical process, great changes have taken place in politics, ideology, theory of crime constitution should have been far left behind. But the fact is that it continues to exist in the theory and practice of criminal law of russia. The author thinks, the so-called "heroes do not ask the source", politics, and it is the theory of constitution of crime defects, as it is the inevitable circumstances of that era. In the era of the crime constitution theory could not have political characteristics. Because, law is the will of the ruling class to reflect, as in the past we criticize the western theory of capitalist color. The so-called capitalist inevitable phenomenon, but also in the process of historical development. But those with the so-called theory of politics, ideology can be developed, can been used not only for its "political correctness", it is because they are themselves with fresh vitality, in the process of historical development, gradually abandon its own sub abuse the requirements of the times, perfect and develop. The theory of constitution of crime is the core value of their own, which is based on the civil law theory, criticism on absorption, suitable for the practice of criminal justice theory. After the introduction of the crime constitutes theory in our country, a period of time better adapted to the judicial practice in our country, a great contribution to the development of our criminal law. With the development of the times, political, narrow itself with the ideology, has been gradually abandoned. Especially nearly 30 years of development, the theory of constitution of crime never be found political shadow. The author -- was born after 80's of last century people, in the criminal law study and practice, will not find the crime political elements in there. Only from history or the criminal law scholars heard some political shadows. As a new generation of us, to accept the theory of constitution of crime is so natural. The reason is of course the effectiveness of its own, practicality. Therefore, politics cannot be as critical theory of constitution of crime tool. The history of the past should become the past.

Second, the correct way to Russia is not the criminal law of our country's development. The development of social science road should not go to A, to B, but should be absorbed A, B absorption, let A, B, C and so on viewpoints and theories fusion penetration in China's environment, finally found that their own theory. Walk up the road one day, come very naturally also form to other circumstances. As scholars said, knowledge of the criminal law of our country has accumulated to a critical state. But the critical state of arrival, and not go to the Soviet Union of the road and the emergence of. And it is in the traditional Russian criminal law theory background, the theory of continental law system, Anglo American law system developed on the basis of absorbing the. Only widely absorb the knowledge of criminal law, collision and eliminated to produce suitable for our country's criminal law knowledge in our judicial practice environment.

(two) the development and foreign exchange issues of China's criminal law

The tenth chapter in the book, scholars believe that the past has come to a standstill, the theory of criminal law, and the constitution of crime of our country the binding relationship; there is a considerable difference between the logic of the system and the continental law system constitutes the crime of our country criminal theory system, it is the logic of difference, which are communication difficulties in in communication, with examples. This view has also become the abandon of constitution of crime in our country scholars theory. We think, this criticism is not reasonable.

First, the theory of criminal law of our country does not come to a standstill. Any one discipline theory development, may not always be produced before, this is not in conformity with the law of development of things. After a violent, will be low, and development is slow. China's criminal law theory now is not to come to a standstill, and it is slowly developing stage. It appears not to develop in the traditional theory of numerous appearances, our theory exploration, and introduces the related law system introduced is to get enough development. In the current criminal system, does not prevent other related knowledge into china. It is so, China's criminal law knowledge gradually accumulate, can reach a critical state. Can say, seems to come to a standstill under the surface, the criminal law theory of our country have a higher perspective and a more vigorous accumulation, we believe that the era of great development of the theory of criminal law will come soon. In an open environment, the scholars of the open field of vision, the change in the judicial practice, the development of the system of constitution of crime never bound of our country criminal law theory.

Second, the crime constitution theory could not hinder our country foreign exchange. Because if the system and the mainland legal system constitute China's crime theory are different system, make communication difficult, and deny the theory of Chinese criminal system and Anglo American law system, so the crime system, is not no way development and exchange. Because it is a unique system of crime. But in fact, all the communication between each other is normal for. We believe that, as long as a country open attitude, develop various exchanges will naturally. Although our country constitution of crime constitution system and the mainland legal system exists logic difference some, there are certain difficulties in communication, while it cannot become the starting point of our crime constitution system of negation. Difficulties can be solved, but the length of time, should abandon the idea of accomplish at one stroke, solid and effective communication. At the same time, it is because of the difference of each other between the communication theory, the significance is very important. In the two kinds of theories of exchange conditions, can be found in each other's problems, the improvement and development of each theory to have a positive effect. If, because of the differences and deny our theory of crime constitution, and the introduction of the theory of continental law, become a kind of theory of internal communication, without the fierce collision, the exchange of meaning at.

(three) the crime logical defect theory

The theory of constitution of crime itself critique, critics are mainly carried out from the logic of the theory of constitution of crime, and the continental criminal theory system comparison. Commentators believe that, in accordance with the Japanese scholar Otsuka Hito standard, evaluation of crime system lies in the two aspects of logic and utility. But our crime constitution system on the existing constitution between bit deletion order relation in logic, major defect of guilty judgment to make judicial practice. This defect is not change can overcome, must start again.[1]We think, there are too many wrong criticism.

The first, two is not consistent, so that the logic of the system of quality is not reasonable. Theory of crime constitution and civil law of our country criminal theory system relationship is not one one of the contrast. From the crime constitution theory of civil law system of criminal theory of choice, and the formation of the logical result of his. So the criminal theory system and the theory of constitution of crime is different. With respect to the crime constitution, system range is relatively broad theory of crime, including not only the existence condition of crime, but also includes the special form of crime, self-defense, emergency hedge the crime obstructed etc.. Professor Chen is also aware of this point.[2]. But knowing that the two are different, but still want to compare together, the logic of the difference, with a part and its overall than logical difference obviously is not scientific. For example, Professor Chen is considered as a whole, the crime of continental legal system is dynamic, showing the logical process of a progressive. While China's criminal theory is coupled, is static, the judicial process can not reflect the conviction. It should be said that this is the view held by many people. The author thinks, come to this conclusion is entirely due to not pay attention to our crime constitution theory and continental criminal theory system of the non reason one one control relationship. Committed to "the whole" and "part" comparison logic error. China's judicial cognizance should crime overall is including the concept of crime, crime constitution, proper behavior (self-defense, emergency hedge). The concept of crime and proper behavior, out of focus on crime, and crime constitution established focusing on crime. So the process of crime in our country is in accordance with the macro on the crime -- or -- or not, such a careful, logical system. When we look at the system, the dynamic nature of our crime process is no doubt. This system can play a real role in the protection of human rights, crime. The crime constitution theory is only one aspect of the crime. Compared with a part of civil law crime system how can say is reasonable, scientific. One point to say is now aware of this dynamic process of scholars or judicial practitioner is less, obscured by the huge rings it is easy to be the crime, not the whole. This is because the constitution of crime are simple to implement induced in judicial practice in the past theory.

Second, the system of criminal theory in continental law system is not so perfect as the scholars on the progressive layers, layers. This point from the system itself is the numerous theories can peep one spot. For example, confkrmity of constitutive elements and the element of illegality, the two elements seems to be the fact judgment to the legal judgment, is actually a great coincidence, or is the order of the upside down. In the legal conditions, the ideal basic law should be the starting point of the law. In fact judgment condition, must have certain law fact. If there is no fact accords with the provisions of the law, basic fact judgment will be groundless, many elements of legal norms, should be the first show, and not have one's words at hand. That is to say, in fact, the judicial personnel has been a fact in accordance with the law of value judgment. Therefore in the continent legal system criminal theory system is a so-called "behavior that compliance and illegal judgment can not be separated elements of illegal (illegal) - liability (liability) judgment system". Some scholars conclude, continental criminal theory system has three problems: (1) the system before and after the conflict. (2) against the status quo and the original intention. (3) there is only tend to system theory, from the reality of judicial practice.[3]This understanding can be said to be better reflects the civil law on abuse the system itself in logic. Where is the reason? The author thinks, this is because the criminal theory in continental law system, the layer into the system only paid attention to the proceedings in the judicial practice, attention is the course of litigation representation. In fact, a criminal theory system function is more than the litigation process? The content of the litigation process more of a procedure to construct. Theory of crime to directly support what is crime, crime, criminal punishment to eliminate the degree and so on a series of. The civil law theory in this series of problems to, its deficiency is more obvious.

Third, the constitution of crime of our country logic system needs further understanding of serious. First of all, in the book "that the four elements of constitution of crime in our country is a deposit are kept, the coexistence of a, each element is dependent on the existence of other elements, can not exist independently. For example, no subjective fault of domination, objective behavior could not be crime. Therefore, "if the subjective crime, crime objective must also set up".[4]Here the author has clearly a mistake. We determined objectively, not because of subjective behavior was established as a crime, it is your own way, weight, etc., the plot. Although the constitute a crime, the four elements to be consistent, but should not be considered as a set up while the other was founded. Secondly, scholars in the book that the elements of crimes in China can be freely according to different criteria re arrangement of the coupling system of constitution of crime, that the lack of uniformity in the whole inner logic.[5]The author thinks that a thing can't be only one side, from multiple angles have different opinions. This is very reasonable. Can not think of many aspects of its logical negation. Requirements according to different standards can rearrange the crime, as long as the standard can be consistently stick to it, the logic of this combination is not a problem. The logical study of the crime should be in a variety of logic, choose the most suitable one in China's judicial practice standards. This is not because the other logical problem, but because the judicial practice needs consistency.

Fourth, scholars in the book from the function point of view that our country crime has the function of unknown system in four elements. The object of the crime is not essential to the crime, cancel the crime object element does not affect the function of constitution of crime.[6]We believe that the scholars' understanding is questionable. The object of the crime is not not essential, but essential. As I mentioned earlier, our determination of the crime is a crime, crime, the three part of the "proper behavior crime crime crime -- --" the careful identification process. The object of the crime, it is the three part of the organic unity of the key. In the whole system of its role, but in the determination of specific cases, but also give full play to the function of the criminal individualization. In China, the concept of crime is a combination of form and essence. This requires the crime process reflects the combination of the form and substance of the. Behavior is consistent with the essential composing, depends on whether it violated the object element. If the object element out of words, crime will become a mere formality content of shell, completely from the crime in the criminal law system of constitution of crime and the crime characteristic of the concept is not stable transition. This is a manifestation of the object of the crime the function. In the play, the object of the crime is proper behavior is legitimate aspect of criminal constitution explanation according to the. Because, the object of the crime is the criminal law to protect the legitimate interests of the social relationship or. While the behavior, found on the surface of the form of crime, but its representation of social relationships is justified, the protection of criminal law, so it can be in the form in accordance with the crime I were excluded. And this, between the exclusion of continental law and the constituent elements of a compliance of two is not a scientific, rational explanation. In that case, the object of the crime is not little. The object from the crime constitution excluded, nor the specific identification of crime, the crime of criminal individualization function loss. If theft is being used in the lighting wires or cables behavior, and theft have been abandoned wire or cable, identical in form, but, in that specific crime, the conclusion will be different, a theft, another constitutes crime of destruction of power facilities. The reason why this would be the outcome, is the object plays a key role. The object of the former is against the ownership of the property, while the latter is public security violation. Therefore, we can say that it is because of the existence of the object of crime, criminal theory system of our country is truly unified, and play an important role in the determination of the crime. This role is indispensable in any case.

The direction of development theory, crime form two

Through the above reflect the views of the author, a natural surface: our existing crime constitution theory can not abandon. So China's crime constitution theory need to go? To be the last thought content.

A, logical and practical standards considerations

Otsuka Hito put forward the evaluation system, the crime lies in the two aspects of logic and utility. We believe that this standard is completely can be used to consider China's existing criminal theory in continental legal system and the system of crime theory. The key problem is how to consider. A simple comparison has been abandoned in the previous. I think, Otsuka Hito's standard implement down, should be further divided into three levels: first, the logic of elements of crime constitution; second, the practicability of elements of crime constitution; third, consistency of logic and utility. On the first question, the process of thinking in the above, we can see, the four elements theory in our country criminal theory system is not only the crime, it is not so illogical, or is the logic of paralysis, but by their own unique system of logic, but in the past, many studies in the field of vision deviation or a simple comparative methods, cause we have no real comprehensively understanding. After learning or criminal law in criminal judicial practice, should enable people to comprehensive understanding of the criminal theory system in China is composed of the concept of crime, crime and the four elements of justifiable defense and other organic composition, but is not only the theory of constitution of crime. In practical terms, it is clear that China's crime constitution theory has obvious advantages. It is easy to operate and to grasp the characteristics of judicial work, so it has strong vitality in the judicial practice. In the civil law system of criminal theory, there is a unique body of suspicion evident. In the very focus on the protection of human rights today, a country's criminal justice could not be opened. Can not simply by virtue of constitution should condition to launch a criminal justice activities. It is not efficient, the protection of human rights is not good. On the third question, but I want to emphasize. In the book I wanted to use the standard to achieve its down the crime constitution theory, reconstruction of the system of criminal theory objective. But it is not the accords with the logical and practical to compare. Excessive focus on the logical comparison. Just imagine, if the system is not very good and the practice of combining a crime, so its role can be big, also can have a few people will accept. The system of criminal theory in continental law system, the continental law countries is not strong, how can it in China into practice? If we introduce the civil law system of criminal theory, it must be the last thing we want to see the theory and practice problems. The theory holds a system, practice has applied to another system. This is absurd. When we uphold a consideration of this standard, is obvious on the two crime theory system choice, our country is not suitable for the introduction of civil law system of criminal theory. We should stick to the current system, the remaining problem is how to perfect it.

The theoretical way to go two, crime in our country

Although the properties for the defense of the constitution of crime of our country, but not to say that the Chinese theory of constitution of crime without blemish. The author thinks, our country criminal theory has at least the following two ways to go.

(a) from the internal point of view, should adhere to objective priority position crime

We have been involved, our country crime four elements can be combined according to different criteria. This is not the crime without logical sequence. Each standard to carry out, the standard of criminal elements with logic. The emphasis should insist objectivism priority position crime, not logically, but because the need of judicial practice. First of all, the judicial practice cannot have more than one standard, so it is difficult to guarantee judicial justice, fairness. Secondly, from the constitution of a crime, the objectivism (individualism) product concept of criminal law based on the principle of legality. The science of criminal law, the essence content of crime, has always been the objectivism and subjectivism. Because the subjectivism view only pay attention to the subjective aspects of human behavior, rather than as the violation of the objective aspect, has advocated the criminal law or the criminal suspect sentiment mood; at the same time, too much emphasis on the subjective aspects of human behavior, expand the discretion of judges in the range of conviction and sentencing on, to protect the freedoms and rights of the individual, so, on under the principle of legality, emphasizes the importance of moral and law screening, the behavior and the results caused for the behavior of the conviction and sentencing is the objectivism criminal law according to the concept, it becomes the best choice of modern criminal law. The system of constitution of crime, as to determine whether the act of crime means, of course, should reflect the concept of crime.[7]Our country because of all the elements of the crime of all depicted in a plane, there seems to be no priorities and the sequence, resulting in crime judgment, is the first in what aspects, to judge whether the establishment of crime, Public opinions are divergent. between scholars, no unanimous conclusion. So, in practice, often have such a phenomenon. In the criminal judgment, give priority to the subjective content behavior, and then consider the objective aspects of human behavior, and even the emergence of the objective is not enough to define the crime, but because of the subjective motivation of human behavior is extremely bad, therefore, be regarded as crime of so-called "not enough objective subjective complement" phenomenon. We think, practice this method of criminal justice in our country is harmful. Therefore, should adhere to objective priority position. The object of the objective aspect of the subject - - - the subjective aspects of this order.

(two) from an external point of view, constitute a crime should be the theory of thin

In the development process of the past few decades, due to the people of the crime constitution theory do not fully understand, and the theory is widely applied to many problems in criminal law. The theory has gradually become the pillar "in criminal law". In the seemingly carry forward the theory of constitution of crime at the same time, the invisible be knocked down in the teeth of the storm. For example, in the standard of accomplished crime problem, the constitution of crime of compliance is still considered the standard of accomplishment of crime. This is not scientific. Crime is to solve the issue of sentencing, the crime constitution theory to solve the problem of conviction. These two different problems with the same standard, is ridiculous. This is the embodiment of Chinese traditional heavy conviction not weight penalty thought. There are many problems with the theory of constitution of crime to gear cutter. So the theory of constitution of crime in order to survive, we must give ourselves slimming. Accurate positioning it should be the establishment of a crime. In order to bring development to yourself, to other theories to the development of space, to make our criminal theory system on the whole organic implementation up. Many of the aura, which appears to be radiant at the same time, also let a person can't see its essence, some comparisons of error will occur.