The Yu text Zhao　　　　　　　　

The original "Zhuhai law" in 2012 first

[Abstract]Because of the different understanding of the relationship between behavioral theory and theory of crime, the behavior is the fact judgment and value judgment is also controversial, China's criminal law scholars on the concept of act in criminal law inconsistent understanding. The concept of unity to act in criminal law, difference, limits and classification function to play the concept, need to re construct system behavior theory, make it from the original single surface into a multidimensional body, and in fact judgment on the value judgment, which layers of filter it doesn't matter in criminal law significance on the phenomenon of.

Key word.Behavior Harmful behavior Criminal behavior

Behavior is the foundation of criminal law building. "No act, no crime" already for the contemporary criminal law theory and practice circles consensus, recognition behavior as the crime condition. So there are old school claims: "the criminal law, to act as the object of penalty, is also the basis for the crime, known as the 'criminal law'."[1]The new criminal law advocate the behavior, status in criminal law has decreased, but the dangerous character of human behavior need to sign. China's criminal law scholars for the study of behavior theory started late, therefore, comprehensive and in-depth study, the lack of the behavior theory in criminal law also. In this paper, based on the concept of our behavior review, combined with the judicial theory and practice of our country, put forward the concept of the new behavior.

One, our behavior concept review

The scholars of our country because of the different positions and points of view, the concept of understanding will correspondingly different behavior. China's criminal law theory generally in the criminal law "behavior" is refers to the traditional criminal law theory "dangerous act", even if the concept is, harm behavior at this level also Public opinions are divergent., to sum up, at least the following several points.

First, the harm behavior, objective elements constitute "here refers to the behavior",Refers to the bodily harm human consciousness and social behavior will dominated.[2]Second, the harm behavior is governed by the behavior of human free will, objectively, in violation of the criminal law prohibiting body movement specification or command specification.[3]Third, as the object of study in the science of criminal law behavior concept should be generalized concept of behavior, namely all the behaviors of the concept in criminal law of common concepts. In other words, from the behavior concept abandoned meaning elements, and body movement directly with social harmfulness to generalize the concept of behavior.[4]Li Hong also think, since the object of concept of behavior in our country's criminal law theory is too narrow, and the current research and a series of issue, therefore, rather than from the concept of behavior of abandoned meaning elements, and body movement directly with social harmfulness to generalize the concept of behavior.[5]Fourth, the act in criminal law is a subject (and obligation) form, is a subject and object (object state) the result of the interaction, is the main body specific subjective mental status in the objective world, is the role of the objective conditions subject to control or should control the state of existence in a certain objective things the.[6]Fifth, the behavior is the will of the people or dominant possibility of body movement or "attitude based on".[7]

From the above definition, basically admit behavior "voxel" feature -- namely, the physical movement behavior, words or attitude. But according to this characteristic, it is easy to see that inaction is not an act, not as the lack of body characteristics. On whether to include "animus" features -- that behavior is implemented in control human consciousness shall act concept, the concept of behavior whether to include behavior of "legal characteristics" -- is a violation of criminal law norms, and behavior concept should include behavior of "society" -- namely, social harmfulness is in the disagreement. The author first view specific analysis, and then the rest of the point of view with the first phase comparison, in order to reveal the behavior concept worthy of recognition and defects.

The first view is representative of most of the scholars in our country, that behavior is a body, intention and harmful, corresponding continental voxel, heart - and interleukin. Characterized by a body of the exclusion of the thought criminals, characterized by deliberate exclusion reflex, sleep, body movements, unconscious action etc.. But this view has the following problems:1.Can not explain the forgetful offence and the cause of freedom, because you forget offense and the reason free behavior in the implementation of the act is not free, it does not belong to this kind of behavior in the concept of the behavior, and in practice by the criminal punishment;(2) in criminal law such as self-defense, emergency hedge legitimate behavior, to some extent, is beneficial to society and the criminal law also encourage people to do harm to the society, this kind of behavior is clearly does not have the concept of behavior said "". So the concept did not take this kind of behavior included, but in practice, due to action is evaluation constitute a crime, because do not have the social harm and criminal illegality, so do not constitute a crime, namely the proper behavior is a crime that is not established evaluation after the crime. Since not justified act was included in the concept of criminal law act, of course, should not be evaluated to constitute a crime, and in fact, proper behavior is evaluated after the qualitative constitute a crime is not the crime, which apparently stultify oneself (3How to judge the behavior) of "social harmfulness" itself is a controversial problem. The peculiar behavior of social harmfulness is not in the criminal law, civil violations, illegal administrative behavior, which is harmful to the society, to define another abstract concept with an abstract concept, it is difficult to play the concept of limit (function4) cannot explain the status crime and possession crime. The so-called identity crime, refers to the special identity as the main important conditions constituting a crime or penalty according to, identity is based on the "identity" and behavior to the crime, not only according to the behavior of crime, but also the identity is the premise condition, if do not have this identity, even for this behavior should not be considered a crime. The so-called hold, refers to the act of particular goods in fact and legal control, control (5) cannot explain the conduct is not implemented only premeditated conspiracy, the conspiracy did not act, but to him to execute a crime shall be investigated for criminal responsibility; (6) harmful behavior itself is not precise. Because from the literal meaning, all the harm to social behavior can be called the harm behavior, including violation of harm behavior and harm of moral behavior of various illegal.

The second view progress lies in see legal characteristic behavior -- criminal illegality. Criminal law as a last line of defense to safeguard social stability and people's rights and interests, although it involves all aspects of social life, but it only evaluate the serious harm to society and people's interests. If the law can be solved, the criminal law does not interfere in any way. But this view cannot contain other harmful act is not a crime, filtering function will not play the concept of behavior.

The third view advocated abandoning the meaning elements from the concept of behavior, people who hold this view believe that the intention to give up, not only can explain the forgetful offence and the cause of freedom, and can avoid the subjective factors and conviction in a repeatable evaluation. The author thinks that the concept of the behavior is to filter out some behavior and the protection of human rights, in order to unify the function concept meaning and reducing its objective elements from appearance, will expand the scope of criminal law evaluation, but elements of the abandoned the guiltless event into the evaluation of criminal law, has denied the sexual ethics behavior too. Besides "different disciplines to behavior under the different definitions, but affirmative action is in the will of the people (including cognition and will) under the control of external activities."[8]

The fourth view is actually the control principle American criminal law scholar Husak puts forward "". In simple terms, the control principle refers to: the criminal liability imposed on the people cannot control the situation is not fair. We are not in violation of this requirement (condition) is not to bear criminal responsibility of the basic moral rights. Its core content is: a man, if he cannot prevent it, is the control of events cannot be. If it is, he should not for the act; if the consequences are, he should be able to prevent it; if it is intention, he should be able to do not have this intention, etc..[9]It is the greatest contribution to solve the crime of omission, identity and possession of criminal behavior explain the nature of the problem, but it denied "crime is the behavior of the basic proposition", and how to judge the behavior of "control or should control" itself is a subjective value judgment process, we can not because of the pursuit of perfection in legal theory and technology to sacrifice the behavior theory.

The fifth view abandons the social harmfulness, of course, can be interpreted as the evaluation of criminal law. But this view in the consciousness or dominate will do the "possibility" of the modification, which expand the extension of the concept of criminal behavior, "meaning with dominant possibility" behavior meet the eye everywhere, such as the completely into the scope of criminal law, the criminal law operation, if it is not the economy, the more important is not appropriate the.

The criminal law scholars on the concept of act in criminal law can appear above so many differences, mainly related to two issues: (1The lack of understanding of unified) on the relationship between behavioral theory and theory of crime. The different stages in the criminal behavior evaluation system, the understanding of the concept of behavior will be different. Because our country crime transplantation of the Soviet mode, discussing the behavior of most of the scholars in China as well as the former Soviet Union scholar as the behavior to a crime to evaluation. This is contrary to the original intention of the behavioral concept in criminal law, the establishment of the concept of behavior is to filter and independent criminal behavior, which provides the basis for the establishment of the crime theory, in order to protect the human rights. Moreover, "no act, no crime" obviously means behavior before and after the value judgment, was identified as a crime. The author thinks that we should reconstruct the system behavior theory. It should not be a single surface, but a multidimensional body. The behavior is through criminal law from beginning to end a masterstroke. (2The position and the angle of different). The behavior is the fact judgment and value judgment disputed. The author thinks that because people have the initiative, so the behavior the fact judgment and value judgment of absolute isolation basically does not exist, essential to understand the behavior of the foundation, must in fact judgment on the value judgment, namely, from objective to subjective and objective, it is consistent.

Should have the concept in the criminal law act, two

From the legislative point of view, the concept of behavior is to filter and the criminal law significance it doesn't matter phenomenon, and it must contain the various facts of the criminal law, but in a level to construct a can bear the fact evaluation and can withstand the value evaluation behavior concept is difficult to do, because the same concept. Meaning in different context is different.[10]Therefore, it is necessary to conduct the concept of hierarchical construct. The author thinks that the behavior has the following three layer structure:

(a) the most generalized behavior

The generalized behavior is criminal law for evaluation of all acts, including harm behavior and harm result the threat behavior. As long as there is the occurrence of the harmful consequences or the possibility of harm results occur, it entered the field of vision of criminal law. This level of behavior refers to the behavior of people with physical movement changed things should save state, results in harmful consequences or damage the real danger. "Dynamic" refers to the actions of the body, the behavior of people by their physical activity actively contributed to the occurrence of the harmful consequences or the possibility of damage results. "Static" refers to the relatively static body, which is relative to the occurrence of harmful consequences, the perpetrator is stationary, and not to harm results occur when people did not have any common sense, is associated with occurrence and harm result, he could have passed a set of positive action to avoid the harmful results, he was on the harm results occur not do certain action and other action. "Things should be state" refers to the things according to their own rules of the state, this state is in accordance with the law of development of things, beneficial for society, for the people, so it is often desired to protect the state criminal law.

(two) general behavior

The generalized behavior refers to the behavior person with its bodily function in the criminal law protection to people or things should be state, namely a violation of the criminal law to protect the legal interests. The author believes that "no act, no crime" in the "action" refers to this level of behavior meaning. It exists and is as a base before the crime behavior crime. "In the criminal legislation, for the life of a kind of social interests should be based on Criminal Law means to protect the legal interest, no concept as the basis for participation in decision. So far, the conception of legal interest is a system of 'concept', as to determine the value of penalty limit standard."[11]So will the behavior concept that the abstraction of "social harmfulness" specific "against the interests of the law or threaten to reach into the constitution of crime and worthy to be investigated for criminal responsibility degree", legislators can determine the adjustment object of the criminal law and range according to the need of social life. So, no matter what kind of behavior, as long as the violation of the criminal law to protect the legal interests, are likely to become the object of criminal law.

(three) special behavior

The narrow sense refers to the crime constitutions behavior. It refers to the act in consciousness or will dominated, with its body movement in criminal law to a person or thing of protection should be the state of the process, results in harmful consequences or real danger harm results, shall be punished behavior. The concept of behavior of this level of more integrated into the value judgment, from the comprehensive evaluation of all aspects of the behavior, see its whether achieve the criminal standard and whether it needs to be investigated for criminal responsibility. So called "crime of behavior" instead of "dangerous act" and "act" the objective aspect of crime elements, in addition to the evaluation point said, also because I think when the constitution of a crime behavior before into the constitution of crime, it must receive the criminal elements of the evaluation, the subject of crime, subjective aspect, the object, the objective aspect is the establishment of elements around the behavior and the behavior, so the specific qualitative narrow as the constitutive elements of the crime of behavior more properly.

Preliminary application, the concept of the new act of three

The new concept of behavior is a three-dimensional structure layers of filtration, through layers of filtration on behavior, difference, limits and classification functions to achieve the concept of behavior, and ultimately to punish crime, the goal of protecting human rights. Behavior theory new hierarchical structuring is the operation in the judicial practice of criminal law: when the harmful consequences or the real danger caused by harmful result, it belongs to the generalized behavior in criminal law, entered the judicial staff investigation scope, relevant personnel should trace to its source, probably process to understand the behavior, to see whether it violated the criminal law to protect the legal interests. If the infringement or the threat of the legal interest in criminal law, should be included in the category of behavior of generalized, waiting for the evaluation of committing a crime, become the crime behavior in.

The levels of the construction of new concept of behavior can solve the following problems: (1) can contain self-defense, emergency hedge legitimate behavior, such behavior, people with bodily harm results, but not against the criminal law to protect the legal interests, so it belongs to the category of the most generalized behavior (2) can solve the problem of omission. The crime of omission harm results, a violation of criminal law to protect the legal interests, it belongs to the "type of behavior should be such as behavior people as", not as committed in violation of the occasion, he should make certain behavior to promote the things consistent development state obligations, things should be broke state, so the concept of the new act can include it in (3) can explain the reason free behavior, holding prisoners and no action and premeditated conspiracy problem behavior. They are based on physical movement his broken things should save state, in order to restore the damaged condition, they must accept the evaluation of the crime (4) can explain the status crime. Status crime is mainly due to violation of the specific legal interest, if does not have the identity, then even if the implementation of this behavior, because they do not violate the law, so it does not belong to the generalized behavior, but initially it appears as the most generalized behavior, just after the evaluation of the broad level concept, because do not infringe the legal interests, so did not enter the broad scope of the behavior, and stay in the most general behavior level.