The choice of direction of criminal law theory

 

 

★ ★ ★If the judicial examination is a mountain, and the mountain is a peak called criminal law,Test of the people know 2 is the most difficult,The reason is not usually do not seriously, but in college, or even criminal law graduate, doctoral stage learning mostly by Ma Kechang, Zhao Bingzhi as the representative of the former Soviet Union the old theory of criminal law, the judicial examination from the beginning of the 06 year will be gradually trips to Zhang Mingkai, Zhou Guangquan as the representative of the more advanced new theory of Germany and Japan, study and test are not the same, this is the source of entangled.The criminal law of Germany and Japan now new theories, no longer the Soviet theory,Now the criminal textbooks on the market is very confusion ScottPlease pay attention, screening, the market of teaching contents wandering in the old theory of teacher, suggested that the decision to give up, at the same time,Scott law part of the study of new theories, the deepwater area already enteredIn 11 years, a large area of criminal law theory of fourth layers of new sites to trend, has been preliminarily formed,The criminal investigation of new theories, the trend is gradually thorough.Zhang Mingkai, Zhou Guangquan, Chen Xingliang these three China criminal law criminal law the Three MusketeersThrough the judicial examination, the stage to China law of young people the message, knowledge does not update will be eliminated.

The framework of knowledge of criminal law:

The first,Scott in the criminal proposition position (key issues)

1,The theory of criminal law and theoretical disputes, undergraduate students, scholars, doctoral students learnt most of theMa Kechang,Zhao BingzhiAs the representative of the former Soviet Union the old theory of criminal law, the backward,As a undergraduate teaching and Scott faultSo that students can not reach, Scott requirements for a qualified undergraduate teaching of criminal law.

2The direction of criminal law, Scott, propositionThorough German and Japanese new theory?NO!The former Soviet Union, the old theory?NO!

★ ★ ★Conclusion: the new theory of "moderate"

1,Zhou Guangquan, Zhang Mingkai as representative

2,Scott law graduate subject appears

3,System consists of two levels of crime   

China's criminal law theory of the old Soviet system of constitution of crime, the four elements: subject of crime subjective aspect of the crime object -- -- -- the objective aspect, this is a type of plane system; China's criminal law theory of Germany and Japan new completely by three levels: the constituent elements of a compliance -- illegality -- liability China's criminal law theory; new moderate with two hierarchies: objective elements -- the objective obstructed -- subjective -- subjective obstructed;Because of the two level system with four elements system is similar, with the three level system of difference, so a mutually acceptable solution.   

Note two points: first,★ ★ ★A correct view of the four elements system. Although the examination syllabus and textbooks use the "three big" four elements system, but this is not true proposition position, but the results Chinese compromise, only has the form of significance, but has no significance.True proposition position only by Zhenti to test, because the test is the hard truth! Careful reading of papers, we will find, 06 years now, the new theory proposition position is always gentle.For example, the four important elements in the system of "object of crime" concept, from 02 years up to now without a point test. "The possibility of consciousness of illegality", "possibility" four elements system no concept, 08 years has examined.   

So the dislocation, shishuwunai.★ ★ ★After the reform and opening in China, theory of law gradually "Russia", realize the modern transformation of knowledge. For example, the civil law, commercial law study learning German, British and American, the Department of law has been basically completed the transformation of knowledge, but the criminal law still cling to the Soviet Union.Therefore, the implementation of a main line: Scott Zhenti study advanced theory in the world, the modern transformation of the knowledge of criminal law. However, the reform will encounter both resistance, can only compromise on. Compromise is embodied in the form level, but progress is thawing. Among the people.

See"The national judicial examination questions analysis assembly" Ministry of JusticeJudicial Examination CenterEditor in chief (Zhenti resolution including title written)

 

Second, a correct view of the system of constitution of crime in the examination of the role of.★ ★ ★System of crime is a theoretical criterion to judge whether a crime is established and the thinking process, not a direct target of examination. Analysis of the problem even in the solution volume fourth cases, only need to list the specific elements within the system, such as subject, behavior, result, do not test system of constitution of crime itself. Therefore, to master the new theory system of constitution of crime, the main value is to master a subject thinking, rather than direct examination.

 

Details:

 

 

Second, objectivism and subjectivism    

The old theory system of constitution of crime and the new theory system of constitution of crime, are different in the judgement of criminal thinking order.   

In the four elements crime constitution system, first determine the subjective level, to determine the objective level. As long as the behavior of the subjective level, even if does not meet certain conditions such as objective levels of harmful consequences, but also constitutes a crime, but attempted crime. This position is better than that of objective and subjective, called subjectivism position.   

In the two level system of constitution of crime, should first determine the objective level, whether subjective level. If the behavior does not accord with the objective level, even with the subjective level, should also be guilty. This objective is better than the subjective position, called objectivism standpoint.   

For example: a desire to kill B, in the wilderness, mistakenly think that stump is B, fired ten shots to the stump.   

Subjectivism that: first, a has a deliberate crime, the subjective elements; secondly, to judge the objective elements, a shoot to kill, in line with the objective elements, then a will constitute a crime; because there is no kill people, so the establishment of the crime of intentional homicide (attempted).   

Objectivism thinks: first determine the objective level, the core is to determine whether there is criminal behavior. An act is a crime, it must be harmful behavior; belong to harm behavior, it must be on the criminal law to protect the legal interests have harmful or dangerous. If a behavior of any danger to the legal interest not, it belongs to the daily life and behavior. In this case, a shot at the behavior, but behavior does not necessarily harm behavior of fire, air or on the ground shot does not belong to the harmful behavior. Fire behavior to become harmful behavior, must have the danger to the lives of others. A now shot the stump, four and no, any threat to the lives of others will not, so it is not harmful behavior. Even the harm behavior not, draw on a conclusion should be directly.   

One would think, that a homicidal intentionally subjective! Note however, crime is a behavior, rather than thinking! Only the intention to kill, but did not kill the harmful behavior, does not constitute a crime. Criminal punishment is harmful behavior, rather than thought.   

[note] subjectivism is not specified crime only subjective, not objective; objectivism is not specified crime only objective, not subjective. A conviction or to comply with the principle of unity of subjective and objective, just with different emphasis. Subjectivism in order to subjective preference, objectivism to objective priority.   

★ ★ ★Subjectivism before World War II was the world mainstream theory of criminal law, but due to subjective subjectivism in crime, easy to violations of human rights, is increasingly serious, after the Second World War, has pulled out of the mainstream status. In today's world, has become the mainstream theory of objectivism. Our old theory is that, taking subjectivism position, produce all sorts of malpractices.Today, the judicial examination to choose a new theory, take the objectivism standpoint, it has positive significance to China's criminal law theory and practice development.    

That is, the new theory, according to the complete degree insist objectivism, can be divided into the new theory of mild and completely new theory. China's criminal law theory of change is taking the progressive Road, is currently in the forward from the old to the new theory of mild theoretical stage.

Third,The concept of crime (hierarchical)

According to the two levels of the system of constitution of crime, crime concept can be hierarchical understanding. In line with the objective elements of the behavior, because of damage to the interests of law, can be regarded as a temporary "crime"; if not only conforms to the objective elements and subjective elements with, behavior is the ultimate need to bear the criminal responsibility of crime "".   

For example, a (10 year old) stealing a television set, let B (20 years) storage, B promised to keep. The B how to deal with? To conceal, conceal the proceeds of crime, the proceeds of crime required behavior object is the proceeds of crime "". According to the traditional four elements crime constitution to recognize, because a under 16 years of age, did not constitute a crime, so the stolen TV and do not belong to the proceeds of crime. So, to B cannot be identified as to conceal, conceal the proceeds of crime, the proceeds of crime. But this conclusion is obviously unreasonable. According to the two levels of the system of constitution of crime, the objective elements of theft of a judge, conforms to the objective elements, with the objective of damage to the interests of law, belongs to the objective level of "crime", the television also belongs to the "crime" income; just because a subjectively has hindered from (not reached the age of criminal responsibility), on a final does not make a crime. Therefore, B conceal the proceeds of crime act, which conceal, conceal the crime of offending.   

Fourth,In the criminal law judicialSome examples of new theoretical investigation

Cases (2011, Volume II radio seventh questions)Ethyl to rape intentionally is violence against women, a for attack indignation to B, objectively stopping rape behavior B.

Point of view:

The justifiable defense need not defense cognition

The justifiable defense need only defense, which only requires the defender to recognize the ongoing illegal violations

The justifiable defense defense will need only, namely the defender only with the intention to protect the legitimate rights and interests of the

The legitimate defense needs defending consciousness, also needs to have the defense will

Conclusion:

AA set of self-defense

BA was not justifiable defense

The above facts, views and conclusions which is corresponding to the correct option?

APoint of view the andAConclusion correspondence; the views and viewBConclusion correspondence

BPoint of view theAConclusion correspondence; the view and viewBConclusion correspondence

CThe point of the viewAConclusion the corresponding point view, andBConclusion correspondence

DPoint of view thereAConclusion correspondence; the point of viewBConclusion correspondence

The Justice Department official answer:A

The official analysis:The first point is that, the establishment of justifiable defense, requires only defense, does not require the defense will. If people recognize the human behavior in the implementation of the unlawful infringement, but has no subjective form is determined to stop illegal infringement, protect the legitimate rights of the legitimate purpose and motivation, lack of clear and protect the legitimate rights, but only because the amazement, excitement, anger, become shame, even in order to satisfy the spiritual emptiness, seek mental stimulation and emotional, to illegal infringement of attack. Based on the above viewpoints, this attack can be established in self-defense.★ ★ ★Two point of view, the establishment of justifiable defense, do not require the defense consciousness, which does not require the defense cognition, also do not require the defense will. According to this view, accidental defense Self-Defense (Zhang Mingkai)The answer, therefore, choose A.

 

In two cases (11 years 2 12 questions)The cognizance of the crime of money laundering, which one of the following optionsError?

A. "criminal law" article 191st has not stipulated the crime of property violation is upstream of money laundering crime, however, the underworld organizations in the implementation of crime of property violation, is still the upstream of money laundering crime

B. upstream of the drug crime from the crime of corruption is mistaken for income and the implementation of money laundering, does not influence the crime of money laundering

C. upstream crime fact can confirm that, due to the upstream crime deaths shall not be investigated for criminal responsibility, should not affect the determination of the crime of money laundering

D. unit loan fraud should be based on the contract fraud crime, the crime of contract fraud is not the upstream of money laundering crime. As the implementation unit loan fraud money laundering behavior, not to set up the crime of money laundering

 

The Justice Department official answer: D

 

Remind one: Chaos market law textbooks

 

The old theory that analyticAccording to the Supreme Court in 2001: "national courts in cases of financial crimes forum conference summary", the unit loan fraud crime for the crime of contract fraud. Thus, the conclusion of contract fraud crime upstream crime non crime of money laundering, thus the error that the D option is correct, then encourage candidates to the criminal dissent to objection.

 

Half the new theory will think:Changes in people without the approval of view, therefore, to require candidates to write a separate Title views, disguised increase the examinee burden.

 

The new theory is correct:

Inspect the knowledge point:Determination of the legal principle of crime and punishment, the crime of money laundering

How to avoid the legal principle of crime and punishment has become the slogan, judgment method for the specification of follow the request of conviction. Conviction is basically a syllogism reasoning process.★ ★ ★The major premise is the law (constitution), the minor premise is the facts of the case, the conclusion is guilty. But in practice, often mistake is reversed, the major premise and the minor premise, the facts of the case as the premise, the constitutive requirements of the legal provisions of the minor premise. For example, a unit of electricity theft. Practice has such reasoning: This is the unit of theft (premise), criminal law doesn't stipulate the unit can become the subject of crime of theft (minor), so the case should be guilty.

The correct inference should be: the constitutive elements of crime of loan fraud is a natural person with for their own or third people (including the units) the purpose of illegal possession of the implementation process of the implementation of loan fraud, loan fraud in the unit, there must be the natural person own implementation of loan fraud, then complete the natural person with loan fraud the constitutive elements of the crime of loan fraud crime, constitution. The implementation of loan fraud from the natural person crime belongs to the upstream of money laundering crime, the object of the proceeds of crime belongs to the crime of money laundering and its benefits. Therefore, as a unit of fraud crime of loan income implementation of money laundering, constitute the crime of money laundering, therefore, the D option error.

(see "the national judicial examination questions analytical compilation of" national judicial examination center of Ministry of Justice GroupVolume 104th pages)

 

Remind two:★ ★ ★Title to reply potency rank is low and reverse the wrong judicial interpretation of criminal law review process of attention.

 

Example three: the 11 years which the criminal case question investigation possession of the dead problem. (See the "national judicial examination questions analysis assembly" volume 119th pages)

The judicial interpretation of the attitude: first to kill intentionally kills the victim, temporarily remove property on the spot, constituted the crime of intentional homicide and crimes of theft. If you leave the scene, later returned to the scene to take property, constitute the crime of homicide and crimes of embezzlement. 

The academic point of view:   

★ ★ ★First, negation, that since the ownership property has died, he does not exist on the property possession, lost the property possession, take away the property then other people act constitutes a crime.(Zhang Mingkai.)      

★ ★ ★Second, compromise, that the possession of the dead should limit, case acceptance. According to the time interval, the perpetrator kills act and the act of killing behavior of the place and other factors, the limited recognition of the possession of property is a continuation of his possession. (Zhou Guangquan.)    

 A methyl to revenge, to kill B, soon found B property of the body, immediately. That the state of possession of property continues at this time, not disappear. A take away the behavior of property crime. If a property was not found, leave the scene later returned to the scene, found that the deceased's property, remove property. Now that the state of possession of property have disappeared, a property constitutes a crime. Summary: (shot on the spot, the spot with, theft. On the spot after the kill, take, fixed occupation.)   

Case two, methyl kill B in B residence to revenge, then find B property of the body, remove property. Because the property in B home, should acknowledge the dead on property possession. A take away the behavior of property crime. (summary: home to kill, to take home, theft.)   

    Case three, a kill B after leaving the scene, independent C pass by, found the dead body of the property and take. To pass by third people, no need to admit that possession of the dead. Third people take the property, constituted the crime of embezzlement. Such differences, mainly taking into account the murderer killed the man, and the use of this state of facts obtain property, but third people and the death does not exist between cause and result. (summary: third people take, fixed occupation.)  

 

Example four: judgment standard theft and plunder:

The old theory is wrong: public and secret

The new theory is correct:   

Discrimination:Burglary is not required to have secret. The secret is common to the crime of theft, but not a necessary condition for the crime of theft.See: Zhang Mingkai: "criminal law" (Fourth Edition), publishing house of law 2011 edition, page 877th.

For example, a carrying bag shopping bag, accidentally fell, fell 5 metres. B pass by quickly picked up the escape. Because B behavior on a no personal danger, so does not constitute the crime of seizing. Because the property is still a possession, so B does not constitute the crime of embezzlement. B can constitute the crime of theft. Here, the behavior of second open, but still constitute the crime of theft.

Some people would say that, if a wrestling dizzy, B is theft; if a awake, B is robbing. The problem is, what if a half awake half halo? Properties cannot be determined B behavior according to a mental state.   

Some people will say, secret theft crime, refers to himself as the secret. As long as the offender be opinionated secret, even if the objective is open, also belong to the secret. The problem is, in the above case, if a is awake but not climb up, shout to b:"Stop!"B said:" you lie ", then picked up the property. B behavior completely open, but still constitute the crime of theft.   

★ ★ ★The error source of the old theory is that people will be the common case as the necessary conditions. In the eyes of the old view, people saw the most theft is done in secret, will most probably it did not actually happen to think that, in the world all theft are secret, then draws the conclusion: the secret is a necessary condition for the crime of theft. However, this is not a complete induction. Even though the majority of larceny is secret, but a few of the larceny is carried out in public.   

[summary] open theft situation: first, like robbery, theft is open. The street down case is the case; second, seemingly embezzlement, theft is open; third, children, mental disease patients with fraud public property, the act of theft, theft of public.

Example five: the crime of kidnapping is then standard:

Example: (10 years 2 sixteenth) a knife will b into the mountains, let B notice his mother sent money to redeem people. B worried his mother a heart attack, and that the car crash, need to pay fifty thousand yuan cost of treatment, the parent for Gospel truth. On the nature of a, which of the following statements are true?

A. of unlawful detention crime                    B. kidnapping

C. robbery                        D. fraud

The justice department answer: B

★ ★ ★Error: this year the Ministry of justice in criminal law the highest number of objections, essence is the old theory did not grasp the correct and standard of the crime of kidnapping is, I think, that people see the old theory of dissent, questions people will answer: "he didn't know what I want to do."

The market of old theory the teacher's advice: (C)

 [objection reason]Firstly, the typical characteristics of the crime of kidnapping is the "with the emperor as feudal order", namely the three parties: the criminals, the hostages, third. And, third people hostage on safety concerns. The Supreme People's court "on hearing the law applicable to a number of criminal cases of robbery and snatch, opinions" pointed out: "the crime of kidnapping is the infringement of personal freedom and rights of the crime, and the difference between the crime of robbery: first, the subjective aspect is not the same. In the crime of robbery, behavior are generally out of possessing illegally intent of robbery, kidnapping, behavior person either for extortion and kidnapping others property behavior, may also the kidnapping behavior for other non economic objective; second, behavior means not the same. Robbery crime is behavior person to plunder property should be at the same time, the same place, has the 'on the spot'; the kidnapping crime is behavior person to kill, damage to the kidnapped person relatives or any other person or entity threat, ransom or propose other illegal request, to plunder property generally do not have 'on the spot'." Here, the key problem is how to understand the "from the third person to ask for money". For example, the use of violence to B, B to call his wife, said "I traffic accident, please put 100000 dollars into my account", as he took the money to a B. Under this situation, not because of the third people considered to be the safety of hostages, therefore, still should be identified as to B I ask for money, convicted of robbery. To deliver the property of the people to know whether the hostages kidnapped in.

(from the French teacher blog method of an organization)

The new theory is correct:

★ ★ ★Proceed with the accomplishment    

Begin to implement power control behavior, is kidnapped to.   

★ ★ ★With the proposed the illegal request to the purpose of the third power control of the victim, is abducted accomplishment.   

If because of causes beyond volition did not control the victim, a kidnapping attempt.   

If the hands before because of causes beyond volition and failed to implement a kidnapping, preparation.   

★ ★ ★[Note 1]The old theory that kidnapping a implementation is accomplished is wrong (also about kidnapping crime as acts committed).   

★ ★ ★[Note 2] the structural behavior of the crime of kidnapping:Power control, proposed the illegal hostage to third people. But only the first step in the implementation of, does not require the implementation of the second step, but is not required to implement the illegal request. Therefore, as long as the behavior of power control of the hostages, kidnapping is accomplished.Some people will ask: what is the difference between the crime of kidnapping and robbery? The difference is that with proposed the illegal request to the purpose of the third kidnapping hostage control in strength, but not the purpose of robbery.

In six cases:

The basics: attention to the provisions and legal fiction★ ★ ★ 

Attention to the provisions and legal fiction is a key to interpret provisions of criminal law, must master.

(a) provision of attention ★ ★ ★   

Note that the provisions in the criminal law, is the premise for the basic provisions of the provisions of the judicial personnel, prompt attention, to avoid judicial personnel neglect. Its characteristic is, do not change the basic provisions of the content, but reiterated that the basic provisions; if not set the rules, encounter such a situation should be handled in accordance with the basic provisions.For example, the judicial interpretation stipulates: carry the misappropriation of public money, be punished according to the crime of corruption. The law is the provision of attention. Because carry misappropriation of public money, because of the purpose of illegal possession, in itself constitute a crime of corruption. This provision has just remind the judge not the case for the crime of embezzlement of public funds. Even without this provision, meet with misappropriation of public money situation, should also be punished according to the crime of corruption.   

Therefore, whether a law Is it right? Notice method is, cancel the provisions of hypothesis, meet matters provisions, conclusion is still so. If it is, that the provision has implications, so the provision is the provision of attention.For example, 253rd paragraph second, postal personnel to open, destroying, mail, Telegraph and steal from property, shall be punished according to the crime of theft. Without this provision, encounter this kind of situation, still should be punished in accordance with the crime of stealing, so this section only has prompt function, which belongs to the provision of attention.

(two) the legal fiction★ ★ ★

Legal fiction, was originally does not meet certain provisions of the act also dealt with in accordance with the provisions of. For example, the provisions of article 269th, guilty of theft, fraud, robbery, for booty, resist arrest or destroy criminal evidence and on the spot the use of violence or threats of violence, in accordance with the provisions of this article 263rd (robbery) conviction and punishment. This article will theft, fraud, plunder the case in accordance with the robbery with. If no such provision, can only be set (or fraud, theft, robbery and the crime of intentional injury, combined punishment for several crimes).    

Therefore, whether a law Is it right? Law drafting method is, cancel the provisions that, in matters of clauses in conclusion, will still be so. If not, that the provision is a special provision, not universal, so the provision is a legal fiction.For example, the provisions of article 289th, the "looting", destroy or take public and private property, the ringleaders, in accordance with the crime of robbery.If cancel the stipulation, meet the "looting", destruction of property, should decide the crime of intentional destruction of property, and should not be the crime of robbery. This shows that the rule will not belong to the crime of robbery case be made into robbery, so it belongs to the legal fiction.  

 

The background knowledge:

"Criminal law" the 196th paragraph third: "stealing and using credit card, with larceny."

"Stealing credit card and using it, whether to distinguish between people and machines?

The old theory is wrong: do not distinguish between, or theft.

★ ★ ★The new theory is correct: the distinction between, on the use of credit card fraud, at this time, because "stealing and using credit card, with larceny." The legal system. The use of machines, was theft, at this time, "stealing and using credit card, with larceny." For the provision of attention.

In six cases:

(11 years 2 58). About "criminal law" provisions of the understanding, which of the following statements isError?

A. even without "provisions of the criminal law" in article 269th, for the theft, and uses violence on the spot for the destruction of evidence, should be identified as the crime of robbery

Regulation of B. even in the absence of "criminal law" the second paragraph 267th, for snatching with lethal weapon behavior can be identified as the crime of robbery

C. even without the "criminal law" provided for in the third paragraph 196th, for "stealing credit card and the ATM withdrawal behavior, can also be identified as theft

Regulation of D. even in the absence of "criminal law" the fourth paragraph 198th, the appraiser insurance accident deliberately provides false supporting documents provide conditions for others to commit insurance fraud, should also be recognized as an accomplice in the crime of insurance fraud

The justice department answer: AB

In seven cases:

The establishment of standard group licentiousness crime:

★ ★ ★The new theory is correct:The legal interests of the public feelings are normal, should be open to the public. If the secret, not known to the public, not against the public's normal sexual feelings, does not constitute a crime.

The old theory is wrong: more than three people.

 

In eight cases:

Larceny is then standard:

The old theory error: out of control

★ ★ ★The new theory is correct:Get control    

(2008 2 sixth) a into B residential burglary, trunk will b (with $30000 in cash) into the wall, ready to go over the wall for a while to pick up. The occasional passing here C found luggage unattended, took it away, take forcible possession of. 15 minutes later, a came to the wall, found the suitcase was no trace. For the qualitative behavior of a, C, which of the following statements are true?
A. a set of theft (accomplished), C　　

B. a set of theft (attempted), C (accomplished) the establishment of theft　　

C. a set of theft (accomplished), C constitute embezzlement　　

D. a set of theft (attempted), C constitute embezzlement

The justice department answer: C

(see "the national judicial examination questions analytical compilation of" national judicial examination center of Ministry of Justice GroupVolume forty-third pages)

Gain control, refers to the act will be property in their actual control range, has ruled out the possibility that the dominant others.For example, a car without B keys, then quietly into the car, to drive away car. A discovery, stop immediately and caught B. B and no actual control car in their own, constitute the crime of theft attempt.   

(1) in the space, make control does not require the theft, have held, as long as the property in their actual control range can be, can maintain considerable distance in space and the. In practice, the thief will be property within a predetermined hidden place, even in their actual control range.   

Case 1, a on the train while the opposite sleeping passengers, luggage out of the carriage, threw his head a predetermined location in the grass, it belongs to the crime. If thrown into the Yangtze River, is the only attempt. If a property into the quiet place, has been accomplished, get off back to pick up, found by others go to pick up, is still not accomplished, attempted to.   

Case 2, a night of burglary, theft of host trunks, thrown into the walls outside the secluded, belongs to the crime. Even being picked up, is still not accomplished, attempted to.

(2) in the state, to obtain control required to reach steady state.   

For example, from a supermarket stealing perfume, just get the hand was found, to be pursued, this time not accomplished. Of course, the stable state is not required to achieve completely hidden state. For example, can not think only a cosmetic stole is accomplished. As long as a perfume in his pocket, did not discover, even if completed.  

(3) according to the guiding ideology, can deal with many problems. Often test case:   

The property of the size of the problem. First, property, criminal who played the transfer is accomplished.For example, a to Suning Appliance City theft refrigerator, the refrigerator out counter monopoly is not accomplished, out of the door is accomplished Electric City. Second, the property is very small, the criminals hiding in the body or in the place of concealment, is accomplished. This does not require the property transfer out of the.For example, the nanny will master ring hidden in storage covert seams, which belongs to the crime.   

    The problem of indirect principal offender. The indirect principal offender burglary is completed, to be used as the standard is accomplished.For example, a notebook computer burglary to children, children stolen computer go out, in the street by car, computer. Because the child has been accomplished, Jia also constitute accomplished.

Fifth, supplement

On the Japanese criminal law scholars pass thick, Otsuka Hito problem

Japanese criminal law scholars pass thick, Otsuka Hito is the two wizards in Japanese criminal law,An authoritative scholar of Japanese judicial examination of criminal law in Germany and Japan, we said, which is the main part of the theory, from the two wizards, but to define a problem, the Japanese criminal law while also insisted on objectivism, i.e. new theory, but in the Japanese criminal law scholars also exist great controversy, butJapan's official judicial examination evasive means:A period of recognized authority, authors as designated books (now pass thickness), students only need to concentrate on studying the works of scholars.

But the status quo of China's criminal law is particularly confusing part of judicial examination;

First, the old and the new theoretical controversy, market examination materials boss is mostly in the old theory, a new theory or amateurs, title passed the point, change, did not test too unpredictable, do not meet nowThe criminal law to the new theory gradually in-depth study trends.

Second,Some teachers directly to study P. thick, Otsuka Hito's works, and the works too radical, new theory does not accord with the current situation of Chinese copy directly to Chinese judicial examination training to, the most obvious manifestation isSystem strengthening phase is a point of view, may be to construe phase of the view change, let the students struggling withFinally, simulation of phase will usually write a similarDisclaimer the move west, "simulation method, for reference only"So, this kind of phenomenon for judicial examination in criminal law is very horrible, but also to the examinee is not responsible for the way,The essence of propositional direction did not grasp the present criminal law, is the largest Zhang Mingkai "criminal law" readers, many of the problems with their own understanding, also is the new theory of teacher -,To critically ill patients, have the order reversed. China judicial examination proposition is the position of criminal law"New theory of mild",Representative is the criminal law the propositionZhang Mingkai and Zhou Guangquan and their works, scholars have their own ideas, not on Japanese authors direct copy, advises students to two scholars in the early works ("Criminal Law (Fourth Edition)" - Zhang Mingkai, "criminal law" the basic position of Zhang Mingkai, "general provisions of criminal law" criminal law "theory" (Second Edition) - Zhou Guangquan) as extracurricular reading, you'll find out many discussions, book case is the judicial examination of the original title, (for example10 years 2 the first question, is Zhou Guangquan "general provisions of criminal law" in 2007 third edition, Chapter 55 page -58 page title, but a word has not changed).

2From the, judicial examination06The year before the beginning of gradually through analyzing Zhang Mingkai, Zhou Guangquan as the representative of the more advanced new theory of Germany and japan.

Note appended."The national judicial examination questions analysis assembly"Only included06-11

3, China criminal law criminal law the three musketeers:Zhang Mingkai (Tsinghua University), Zhou Guangquan (Tsinghua University) Chen Xingliang (Beijing University)