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Introduce a question: behavior, non controversial theory of value no theory of value and the result of

Conduct without value and consequence without value is about two opposing theories of illegality judgment in German and Japanese criminal law. In recent years, with the introduction of German and Japanese criminal law theory, the behavior without the value theory and the result has no value in our country also caused no small discussion. The behavior without the value theory and the results of no value on the inherent antagonism in German and Japanese criminal law theory in continental criminal law scholars Chinese also expanded, and cultural background and different criminal constitution theory is different, the behavior without the theory of value and the result has no value in our dispute quite complex.

Act without value theory and discrete results no value are two kinds of opposite theory formed according to the non object value judgment is different. No value behavior refers to the behavior due to violation of social ethics, social and cultural norms, codes of conduct, it must be evaluated without value and negative, not to highlight the behavior and illegal, not worth imitation and learning. Results no value is caused by the behavior of violating legal interests or dangerous legal interests, giving no qualitative evaluation, in order to highlight the importance of being against the legal interests of the. To make a long story short, no judgment basis value to behavior, the core is the behavior; and the valueless result is caused by the consequences of behavior or risk considerations, its core is the law; their opposition in the nature of criminal law, criminal illegality judgment factors, the interpretation of criminal law, penalty, criminal public identity are the dispute, are described in detail below.

Two, without the essence theory of value and the lawless thought

(a) the theory of violating legal interests and the theory of violating norms

What is the illegal nature? Results no value theory advocates the theory of violating legal interests, that's mission is to protect the legal interest of criminal law. The conception of legal interest is the initiator of German scholar Bill Baum; German criminal law experts Amin Kaufman think, the protection of law is the goal and task of the criminal law, legal interest is the top value system and fundamental.[1]Scholars in China have a benefit in law, Professor Zhang Mingkai think, "we must carry out substantive interpretation of the constitution, namely to acts of violation against the interests of law as the core to interpret the constitution." The nature of the illegal acts against the interests of law is violated. Conduct without value for the master, the German criminal law of objective act theory welzer, initiative, conduct without value generally advocated violating norms, process there is a constantly changing but for breaching the understanding, advocated by the first bin Ding subjective illegal theory and super criminal norm form illegal theory, to understand in order to regulate illegal Meyer will violate the rooted in culture, and then to welzel illegal interpreted as a norm violation violation and the value relations (i.e., criminal law provisions is not only to protect the legal interests, values and abide by the law of such a relationship, but also value) social ethics violation of Japanese scholars advocated by Dleto Shigehikaru, and so on, This is not the only one. Our country scholar Professor Zhou Guangquan advocated violating norms, the thought that "crime (illegal) is the essence of violating norms rather than the law profit violation, the purpose of criminal law should not be the protection of law, but to guarantee the validity of norms; I am in favor of violating norms, and that in the current China, persist in violating norms rather than the theory of violating legal interests, more practical."[II]In the field of criminal law, if one insists Fa Zhi ideas, we must pay attention to the maintenance of public order, pay attention to "rule of law" (Fa Zhi) under the normative significance. Norm theory is not equal to the criminal law formalism, not contempt for human rights. On the contrary, paying attention to the normative, to maintain the basic social justice and as much as possible to create a real way of life are extremely important. A discussion on the value of criminal law norms, lack of criminal law in China in current.[3]Overall, results no value on the law profit violation theory in the illegal nature, conduct without value is holding the position of violating norms.

(two) conduct without value and norm violation

Results no value theory and conduct without value conflict and controversy in the illegal essence here has been shown, in fact behavior without value and that differences of consequence without value dispute not appear obvious representation. Conduct without value theory that behavior is a violation of law and norms and social ethics, and finally the law behavior, but behavior "norms" is the focus of illegality evaluation. Results no value on the contrary, that is against the law and against the interests of behavior, but behavior "law against illegal judgment" is the core of. In other words, conduct without value and consequence without value is not in violation of that agreement, on the opposite and the law profit violation, in fact is "violation of norms and the proposition of law" does not exist differences, but both sides in the emphasis is different. As the Japanese scholar Professor Otsuka Hito pointed out that the "criminal law of the two position (no theory of value and the result has no value) heterogeneity seems to emphasize excessively, the two position is just the essential illegitimacy cognition from a different point of view, is not compatible."[4]Reviewing the development trend of Contemporary German and Japanese criminal law in consequence without value and behavior without value, dualism of act without value in that position, in other words, act without value is increasingly showing benefit in law and moral tendency, and only conduct without value and the result of no value exists at the same time can be set up illegal, only both were cancelled in order to set up a justifiable reason, two yuan of equal status.[⑤]The author thinks, dualism, to compromise act without value and consequence without value of defects, their own weaknesses, is reasonable, but as we said, some opposition and argument there is a fundamental misunderstanding, it is not completely without value exclusion violating legal interests, not only emphasize the behavior code violation, it absorbed the results of no value on the reasonable claims against the interests of the law say, therefore conduct without value has the vitality, and the so-called dualism substance similar to conduct without value. On the basis of violating norms, advocates say behoove, because of the nature of a lawless, attention like behavior itself (anti ethical behavior and mood) implementation, itself is to conduct another interpretation of violation, the emphasis is the anti ethical behavior itself, counter culture, antisocial, and illegal interests, but not without considering the damage to the interests of law. To sum up in a word, the behavior without the value theory of norms and said that the existence of internal consistency. Taking into account the illegal essence is the infringement of the legal interest of norm violation, as the German criminal law experts Jakobs said, "the protection of legal interest of criminal law for the purpose of the statement should be replaced, the protection of criminal law is to attack the interests would not have such an expectation. The criminal law safeguard is the specification of the application, and the protection is not against the interests of law."[6]This argument, be willing to recognize. As the German criminal law scholars Jakobs said, "illegality is to destroy the specification, namely the whole law order harmonious damage behavior deviating from the norm, the understanding of the world."[7]

No theory of value and the illegal judgment three, thinking

(a) judgment basis and object behavior

No inspection center of gravity value theory is a behavior, through the study of the behavior patterns, mental attitude, etc., to determine the existence of illegal. (of course, also should combine the results or dangerous to judge whether occurring between, just, and the result behavior is in the core position); if the result has no value advocated only to the results or dangerous or illegal judgment as the object reference, in fact is not a comprehensive view. As in the case of accidental defense, conduct without value theory claims that defense intention is necessary, which is the subjective intention of defense must have, otherwise not just, more non legitimate defense, so that accidental defense establishment of justifiable defense; results no value theory advocated the defense intention not to say, that the objective behavior of people protect legal interest, has no damage to the interests of law, so the subjective need not have the defense means you can set up a legal defense, so definitely accidental defense establishment of justifiable defense. For example, one is to implement rape behavior of ethylene, propylene was just a shot and he is a man to kill, a third behavior indeed the objective of "stop" a rape victim, protection of the rights and interests of a B C, but some behavior in subjective on does not have the defense means, instead it is the subjective psychological attitude to dominate the implementation of intentional homicide, it is difficult to set up the justifiable defense, however, according to the results of no value theory, which admits a C is an accidental defense, justifiable defense can be established, difficult to accept; act without value from the state, behavior style and subjective mental attitude and other aspects the behavior, that behavior in the subjective intention to kill under the mental domination, the implementation of the shoot to kill the behavior, the behavior is dangerous infringe upon the right to life, although the final did not lead to others death results, but according to the criminal law is not a law against, but for emphasize the standard applicable to criminal law provisions, namely the crime of intentional homicide and the judicial practice for the behavior of homicide penalty, purpose In the establishment of the public for the criminal law norms implies behavior standards compliance and loyalty, namely intentional homicide behavior is prohibited by the criminal law, the behavior person, do not have to follow and learning, killing a C in the case itself has a criminal law violation, should be negative evaluation, or if think self-defense, not only attach too much importance to the protection of human rights of criminals, and ignored the act itself and the illegality subjective malignant, but also criminal law consciousness and feel the public cause bad effect, as if the results are good, then how behavior can not be considered, this is helpful to the criminal law norms of behavior guidance function, does not contribute to the formation of the public on the approval and support of criminal law; in the course of time, the public basic criminal law will inevitably lack, lack of public basic norms of criminal law not legitimate, legal belief is the mirage. This point is worth our deep reflection.

(two) the time of judgment - pre judge

Should say, results no value theory claims that after the objective things happen, considering various objective factors after the confirmation, is really out of objectivist illegality is position, the time the illegality judgment, rather than the behavior, the criminal law evaluation always afterwards, thinking is the retrospective, is backward looking, corresponding measures are to have occurred to the crime, not focus on the prevention of future crime.[8]Conduct without value to hold the opposite opinion, as Fujiki Hideo said, illegal judgment should not from the results began, more should be in before the facts. Therefore, substantial illegality is not entirely the result of no value should also include the act without value, like state of dangerous action, the choice of means, specific methods should be evaluated, in short, with considerable social degree of phase separated and the law is the essence of illegality in.[9]In conclusion conduct without value adhere to act too little for the judgment of illegality. It aims to highlight the criminal law on the national behavior guidance and guide function, to a certain extent limit shrink illegal range, and with the principle of legality in fact also have internal consistency, because it is the so-called law of phase code violation, whether the behavior should be punished is associated in criminal law, and whether the behavior should be as illegal type elements, while in the responsibility of violating norms is considering issues related to liability, the stage is also need to consider the norm violation, however illegal stage and the responsible phase to consider violating norms perspective is different, the former to the general public view over the illegal or not, the latter the specific behavior in specific situations and to investigate whether has the responsibility. Because of the legal principle of crime and punishment to constitution of crime and the illegal judgment problems, rather than consider accountability stage, so the behavior value theory in behavior point to illegal norm violation is considered, which is compatible with the principle of legality.

(three) sequence logic judgment logic from behavior to results

The illegality judgment process, what is "from cause to effect" or "from the effect due to the" priceless value, behavior theory claims that starting from the behavior study, combined with relevant state into behavior, as well as the subjective psychological attitude and behavior, the track of the development of further analysis and risk, and this result is no claims theory of value "from the fruit to determine logical order for" is different, which results from the start, analysis the reason of the result exists, whether there is a causal relationship between the criminal law of cause and effect, this analysis is stopped, the results of the specific why, is the behavior of people or things the behavior is not a concern; the subjective side and result, is impossible, is not in the scope of the study of consequence without value within. The author thinks, conduct without value theory advocates from the behavior for the judgment of starting point, and then from behavior to the illegal judgment logical sequence is reasonable, and the review of criminal provisions of the criminal law norms in the text, such as the crime of dangerous driving behavior made (the abstract dangerous crime) does not require that damage results is founded, legal interest violation based on the result of no value can not reasonably explain and judgment, so that acts as the starting point to study the illegality is appropriate, but also comprehensive. And as the crime of accepting bribes, bribes criminal behavior person has 386th plot lines shall be given a heavier punishment according to the results, no value on the infringement of that law said, and "from fruit to judge by the logical order" to explain, in fact, combined with the behavior of people, the amount of bribery punishment plot from the act itself, the specific circumstances and act of bribery, illegal behavior can be seen the extent of more than mere bribee, subjective malignant is more obvious and serious, so take "by the logic of illegality judgment and order for fruit" is reasonable. Lenovo to "Yao's case", if you simply take the theory of violating legal interests of the position, and "order judgment by the fruit to illegal logic for", the law degree is obviously difficult to highlight, the subjective factors to be investigated in accountability stage to, this is undoubtedly for Yao's Intentional Homicide Act thin, give a person with a common intentional homicide behavior is the illusion, which triggered a strong voice of the Yao people sentenced to death with the intense indignation, and from the behavior without value and norm violation position, when the "judge order by illegal logical cause and effect", according to its the behavior of human "even holds eight knives behavior" of the objective behavior and means, as well as its bad subjective malignant, obtained the law degree would be more obvious than the intentional homicide behavior in general, as with intentional homicide passion kill more cannot be mentioned in the same breath, in this case the medicine Xin was sentenced to death, in accordance with public standard feeling and awareness, strengthen the public's daily behavior standard consciousness, promote or forced not to implement the acts in violation of the norms of behavior, and that the public informed about others The right of life shall not be violated, and the protection of legal interests to others, not intentional homicide and serious warning and prompt public serious, bad behaviour, ignoring the lives of others, the law will punish with due severity.

No theory of value and the interpretation of criminal law four, behavior analysis

(a) "of interpretation of criminal law interpretation: form, theory and interpretation theory

Interpretation on form and interpretation on substance is the constitutive elements of a crime are explained under the principle of legality differences, formal interpretation theory claims that in the framework of the principle of legality, the interpretation of the law should take the form of criminal law interpretation, literal may have meaning, then the provisions of substantive interpretation of criminal Law -- there is a serious social harm behavior; and the essence of the interpretation of the necessity of punishment as the starting point, advocates of law interpretation, directly will not have the necessity of punishment excluded from the scope of law, namely law stipulates the behavior manner of social harm behavior has the necessity of punishment, to explain behavior, first starting from substantive interpretation behavior whether has the necessity of punishment, then the possible meanings of formal interpretation at the provisions of the criminal law have covered the behavior.[⑩]In addition, formal interpretation generally include the following three points: (1) the constitution explanation must respect the law meaning of not more than literal interpretation, types of behavior elements limit the provisions of the criminal law; (2) in the form of judgment limiting method precedes substantial judgment explanation limits, combined with the claim form of judgment and substantive judgment; (3) when a behavior can not be a specification of the meaning of the term covered, must consider the possible meanings of words and the maximum range, must be explained in the scope, otherwise it will belong to analogical interpretation. But the substantive theory includes the following three points: (1) the constitution must be interpreted with the protection of law provisions of law as a guide, not just to stay in the literal meaning of the law; (2) criminal entity is illegal and responsibility, must be literally with elements, actually not has may punish the nature of the act in addition to constituent elements; (3) within the core meaning when a behavior is not in the words of criminal law, but the necessity of punishment and rationality, shall be in compliance with the principle of legality under, for expanding explanatory of the criminal law. In a word, in the premise of follow the principle of legality, can make the defendant is not conducive to the expansion of driving, so as to realize the validity of punishment. A formal interpretation and interpretation on substance, is already in the criminal law theory of our country, in fact the debate as professor Chen Xingliang says "is not only the elements of competition, and even the function of criminal law theory, the criminal law dispute dispute."[11]

(two) value: no theory within the appropriate interpretation theory of value and form

Act without value on violating norms, to act as the time of judgment, will act as a starting point for judging illegality, follow the "judgment order by illegal logical cause and effect", emphasizing the "behavior" in the core status of illegality judgment, natural in constitution of crime and the illegal judgment (explain) is emphasized and attention behavior type and type of function, emphasizing the crime of rigid elements of the formal and conviction, not to succumb to the valueless result on the infringement of advocating law said, and "from the effect due to" the logic order of the substance of the position, even in the does not have the provisions of the criminal law cases can make further explanation, will have the necessity of punishment, has serious social harmfulness behavior explanation for the crime, in any case, I can't agree with this view, although substantial position can adapt to social change and the objective situation, can keep the tension and practice of rationality of criminal law, but beyond the maximum possible criminal words meaning "expanding interpretation, as professor Chen Xingliang claims it has heterogeneity is one kind of push explained. I agree with this criticism, and that the behavior without the value theory and interpretation on form has theoretically within the appropriate and consistent, be willing to recognize.

No value theory and penalty five, intention recognition

(a): the game premise in the general prevention and special prevention

The theory is that, the purpose of punishment is to prevent crime, according to the prevention of object are different, so the purpose of penalty is divided into two aspects of special prevention and general prevention, technically known as double prevention.[12]Special precautions for criminal punishment, punishment and reform of criminals, in order to prevent them to crime, the main ways to achieve through the deprivation, punishment and education reform; and general prevention is refers to the criminal punishment, deterrence, warning the potential offenders, prevent them to embark on the road of crime. The relationship between general prevention and special prevention is closely, supplement each other. The people's court to any criminal punishment contains the contents and information of special prevention and general prevention. Thus, for the purpose of penalty should balance the relationship between the special prevention and general prevention, general prevention and in order to emphasize a deterrent effect sentenced violates the principle of legality, the blind pursuit of special prevention of penalty purpose and ignore the global view and normative effect but also desirable; it should be said that the purpose of punishment of highlights to a certain extent is correlated with the social situation and the criminal policy of the Ming Dynasty, the ancient "severe law, criminal law, not only in need of" set harsh punishment, and also aggravated punishment, emphasizing warn others against following a bad example, too much attention to its demonstration effect, prevent the excessive emphasis and attention, the short duration of the Ming Dynasty more evidence long term severe punishment is not social governance, but also shows the general prevention too much emphasis on the defects and shortcomings desirable. Vice versa, emphasis on punishment and deprivation of the special prevention, general prevention idea cannot build, it is difficult to truly and fundamentally curb the occurrence of crime and abuse, to cultivate public recognition and support the consciousness of rule of law and criminal law in the civil consciousness is very important, so special prevention and general prevention shall be concurrently, the best state up to the purpose of penalty.

(two) the general prevention highlights: conduct without value theory should be righteousness

Act without value theory emphasizes the norm violation, that the purpose of penalty is ultimately the general prevention, special prevention is based on to the general prevention of moderate inclination, namely through the criminal punishment, paying attention to the normative consciousness and norms of social public feeling culture, promote the implementation does not violate criminal law behavior, enable citizens to admit: because the crime behavior has disturbed the security a look forward to normative legitimacy of criminal law, so its behavior worth mentioning, need to be excluded and negative appraisals. So, the behavior without the value theory should be righteousness is required in the base of the special prevention, general prevention should be appropriate to highlight, emphasizing the penalty is to regulate the destroyer retort, general prevention emphasize the positive, normative, and the public for compliance and effectiveness and produce a kind of method of security and a sense of order the normative effect, destroyed by crime again consolidated, so as to maintain public trust and obey to the specification, the legitimacy of punishment is actually in this positive approach to the maintenance of law and order stability.[13]Not otherwise, penalty will change to the old age of "an eye for an eye, answer blows with blows" retaliation and punishment doctrine, this is no doubt a historical retrogression, the mainstream culture and value and modern rule of law civilization apparent paradox, not to take.

No theory of value and the criminal law act six, public identity recognition

(a) act without value theory and criminal law of national mandatory the weakening

Conduct without value attached great importance to the consideration of that behavior, violating norms position, emphasize (criminal) code of conduct guidelines and guidance function, emphasize punishment based on the special prevention, general prevention of proper tilt, to some extent, weaken the national mandatory inclination, to change the face and feel always serious and criminal law cold; of course, the criminal law as the last line of defense of the rule of law, not only has finally and complementary characteristics, it also has the characteristics of the most severe and compulsory, criminal law or not to attack, or to deprive, restriction of personal freedom penalty measures against the crime, the public often heard of criminal law and the the penalty, criminal law and penalty will always have nothing to do with their own, or a long time and much better, for a long time have a great influence on the public mind mental such, because the criminal law and penalty becomes synonymous with "kill off", the criminal law of the national mandatory be overemphasized the adverse consequences of emphasis on, in the course of time, the criminal law from the approval and support of the public foundation will far, cease to exist except in name. So it is necessary to face up to the criminal law of the national mandatory, it is necessary to correct the attitude and opinion on the criminal law in the past, the criminal law as the patron saint of his life right and not abandon the codes of conduct are not from the guidance, taking over the national compulsory criminal law emphasizes the corrected, consciousness and sense of the public to the criminal law has a certain degree of change identification and recognition of criminal law, the public will be thick up, on this foundation, the criminal law of people to more stable.

(two) the idea of strengthening induced behavior without the value theory and criminal law

This tells the criminal mandatory to have need to be corrected and steering, the behavior has no effect on the value of a series of ideas, the concept of criminal law by we need to emphasize and. The concept of national mandatory induced hardening and weakening the fact of criminal law and criminal law is the importance of the criminal law from the opposite angle of the public recognition of the criminal law, namely the idea of the establishment and attention will be induced as a code of conduct public guidance and leading brand produced a far-reaching impact, if things go on like this to the criminal law, the criminal law has become a public heart identity, between the crime and non crime awareness awareness of comprehensive measure their behavior will violate the norms of behavior in the criminal law, and then formed a kind of inner conviction, "is a violation of norms of behavior do, will damage to the integrity and order of normative, will undermine the public norms of criminal law norm consciousness and feelings the criminal law, will eventually have a negative evaluation and importance evaluation", in this way, the norms of criminal law is such a kind of recognition: because the crime behavior has disturbed the criminal law safeguard normative legitimacy expectations, so become a need to exclude things, the purpose of criminal law is to make a specification is determined by the order and stability chemical.[14]In addition, the behavior without the value theory emphasized the importance of prevention for general purpose of penalty, the German scholar Jakobs said, "general prevention must be positive, help to establish general preventive sense of loyalty."[15]In fact, the criminal law and public identity is closely related to the establishment of the law, the sense of loyalty, must take the public on the public approval of criminal law as the premise, or it just castles in the air, more difficult to establish the criminal law norms of behavior loyalty. In short, the criminal law must be public recognition, can effective norms of criminal law has been maintained, the existence of criminal law also became significant. Have a high degree of internal consistency and mutual relationship between behavior, norms, criminal law, public identity. In fact, "punishment and its possibility to be realized only in the public identity, national standard consciousness that is the vitality."[16]This from another aspect also underscores the importance of criminal public identity and should be emphasizing the necessity of.

Note here is, criminal law in the public identity is meant to blindly cater to the tastes of some people to meet a prejudice? "Yao's case", "Xu Ting case", "Sun Weiming case", "Zhang Mingbao case" gave us a lot of inspiration, in the face of the society, especially on the web in a screaming, shouting kill without forgiveness of the radical argument, it does reflect a part of the net and the public sense of simple method love and law consciousness, but whether the public approval of criminal law and the public voices equate? The author thinks, the criminal law despite the need to have social public foundation, to meet the public identity of criminal law, but its still need to keep their restraint and modesty of the inner logic and rationality of criminal law, conform to the public identity is not equal to the verdict in violation of the provisions of crime in law, legal contortions, blindly to express a kind of prejudice, the criminal law rationality lost. At least, this reflects in two aspects, first, the public tools of criminal law theory emphasizes, knowledge of criminal law norms of behavior characteristics of the low, or even a loss. In a culture that down, shouting "traditional thinking and sound foolish unforgiven" presence will be not at all surprising; secondly, the criminal law and the public cultural fault, criminal law development cannot leave the public approval of criminal law, or the lack of public support for the criminal law will incur public doubts and in the course of time, the public outcry, the lack of confidence and trust in the judicial and law enforcement. The trust crisis of existence, is the greatest tragedy of judicial; sorrow than a dead heart, a consequence of this is dangerous, enough to cause our attention. Too much emphasis on a person to improve the pure tool and correction of criminal law theory, the two above in criminal law's own logic and rationality of the foundation, the appropriate balance between the public approval of criminal law, enhancing public understanding of criminal law norms, to strengthen its normative consciousness, but as mentioned above, the public approval of criminal law is not equal to the criminal judgment and society public opinion and uniform. In fact, this is not only to recognize a single criminal law, it is a culture change, this non three day effect, and long.

Advocates non value theory, in the criminal law act seven

(a) to conduct without value theory

Conduct without value in the lawless nature to norm violation, illegal think crime is the violation of norms of behavior (as mentioned earlier, violating norms is not against the behavior of the law against the consideration, as the advocate of the scholars of violating norms of law), is therefore essential on the criminal law is the protection of the criminal law; in the illegal judgment, adhere to the judgment is the core of behavior, the time of judgment is the behavior, namely pre on behavior, state and subjective psychological attitude, and the results or risk considerations, logical judgment "by cause and effect" of the order; conduct without value the inherent requirements of the elements of crime to explain to take the form of interpretation theory standpoint, against interpretation on substance; act without value theory in the field of the purpose of punishment, stressed the need to moderate to and take positive general prevention, special prevention norms in the foundation, highlighted in the social norms of public life in the influence and guidance function; similarly, conduct without value contributes to the formation of the public to promote and formation, which can establish civil norms of criminal law Loyalty and normative sense, which for the establishment and promotion on the construction of rule of law is the most fundamental and core part of any rule, because the lack of public foundation will fail.

(two) the behavior without the confirmation standard value theory: social correspondence

Although the author advocates conduct without value position, but the above relates to a core concept is "social justice", I try to at the end of this issues. Can see, both mentioned above the public concept, or the general public understanding as a standard to judge whether constitutes the illegality, or emphasize the general prevention in public on the cognition and understanding of criminal law norms, here are related to the problem of understanding the general human society, which is in fact the behavior no value on core issues in judging the illegality of considerable social problems, i.e..

Considerable social, is the German criminal law master first proposed by Will Che M in 1939, Wei's thought "all in the social community life history of the formation of the moral order, are of considerable social behavior." As he did in the "research" a book about the system of criminal law "should be formed in the history of the national common order, will have the function of behavior from the illegal concept, and this does not escape the social life behavior, called social behavior."[17]Since founded welzel social considerable theory, its essence and nature had been questioned and controversy, especially controversial in the Japanese criminal law theory, general principle of Professor Dleto Shigehikaru will be considerable social as a ground for elimination of misfeasance, also holding the view of Professor Otsuka Hito and Professor Ootani Mi; Fujiki Hideo thought it is explained the principle elements of Fukuda Hira thought; social considerable both elements also illegal to explain the principle of obstructed, a compromise means;[18]In our criminal law theory, according to the research of Professor Chen Xingliang, China's first law dictionary of social considerable is their own editorial[19], a considerable social entry content will introduce considerable social is "foreign criminal law theory about the illegal resistance but a theory, refers to the social life, allowing the social ethical order form the historical behavior, suitable cases such as wrestling competitive behavior is considerable social behavior."[20]In addition a considerable social, some scholars believe that the theory of social worthiness in response to public identity requirements of criminal law;[21]Some scholars believe that social justice is one of the forms of common sense of the interpretation of criminal law;[22]Some scholars believe that the social considerable as justification according to;[23]Some scholars as to whether or not serious escape society quite as a crime of criminal legislation and of non criminal substantive benchmark;[24]And so on, views, This is not the only one. The first time that Dr. Huang Dingquan in Taiwan, the scholars of our country social correspondence, "we believe that, in the theory of the master, should be the principle as the impediment of illegality, as elements in the stage, various elements such as the bribery crime, the crime of gambling in 'bribery' the 'for temporary entertainment thing', narrow interpretation principle can not be expanded, but the general principle for resistance constitutes necessary elements should be the."[25]This view actually and Japanese scholar Fukuda Hira is the same, Fukuda Hira think: (1) first of all should take the principle of social considerable as resistance is illegal. (2) social correspondence is formed to explain the principle of elements for each.[26]That is, the above views, and take three classes in German and Japanese criminal law theory to constitute elements of illegality should have corresponding hierarchical accountability. Postdoctoral Fellow, Max Planck Institute of criminal law of criminal law at Wuhan University Dr., Chinese scholars Dr. Chen Xuan expressed doubts stratification on should and illegality in the monograph "criminal law of social considerable theory research", and put forward should be illegal from the form of judgment to substantive judgment to whole, namely the essential ingredient and illegal levels of judgment should be merged, unified the essence "illegal" stage, in the illegal after the stage of liability judgment, and from two aspects of behavior and the behavior of people to crime judgment mode structure, namely the illegal problem in criminal law, and the latter is commensurate with responsibilities; notably, although that "professor Zhang Mingkai of China's law is objective and responsibility is subjective" system of constitution of crime is a two class constitution system[27], but the two are different. Here, Dr. Chen Xuan actually to Dr. Fukuda Hira and Huang Dingquan views agree, "social correspondence is illegal uniform interpretation principle. It not only can such as German criminal theory generally recognized as essential elements of the elements, the specific crime constitution provides the basis, but also for a variety of legal interpretation provides guidance."[28]Can see, Dr. Chen Xuan this argument, the former is the interpretation of the specific elements of a crime had the function, and the latter is to provide a general explanation of the principle of justification, as Dr. Chen Xuan in the social correspondence two kinds of function analysis in the words, "first, the lack of direct determination of criminal law elements elements embodied in the act without value, thus excluding illegal; second, identified by the establishment of general principles of criminal law (or the general provisions of criminal law) independent justification that, thus denying the law elements have, to exclude illegal."[29]I agree with the statement.

In addition, social and social harmfulness, acceptable risk, the punishable illegality and conform to the legal behavior between the concepts of all relations, namely, whether the latter can be used as alternative measures of social considerable, in order to eliminate the defects and weaknesses of social considerable, and expelled the concept of social considerable criminal law science, the author does not agree, and that social considerable though is a source in the outside of the law, to social life in the rules to make up for the principle of positive law and therefore often criticized defect. In fact, as a substantive basis objective elements, basic method which shows the standard of judging and basic rule is any specific imputation principle and system are unable to bypass and substituted. To sum up in a word, cannot replace the considerable social function, has the unique status and value. And so far, considerable social as a standard or not enough, it must eliminate the blame and blame outside of their fuzzy criteria, such as the concept of social considerable too abstract, the lack of clear standards; "social concept of equivalent quite abstract, ambiguous, its location and content are not very clear."[30]But it is also a core problem, in other words, the specific method for judging social correspondence why is a key problem, and this is the priceless value is worth advocating behavior on a key global issues. In fact, as some scholars have said, "indeed, considerable social theory cannot be said is very clear. However, no clear does not mean lack of operability."[31]

The author advocates, the considerable social judgment can be divided into three steps: (1) whether the precondition need consider the social problems. As mentioned above, the premise of social considerable stipulated in the law has not only, can make to social experience the fact judgment, or directly to comply with the provisions of the law can be solved, no criminal consider considerable social exclusion behavior; (2) the core conditions: in general with the universality of social fact judgment. In particular scope of time and space, whether an act was widely considered a social life can smoothly in normal and necessary action.[32]Behavioral properties of the German scholar Wei Gente once said, 'considerable social and not a fixed, can be applied to all can imagine the situation, on the contrary, the specific social background to it only the combination of behavior which is determined.' In view of China's vast territory, numerous nationalities, the culture is different, so the social judgment equivalent should be based on specific, exclusive regional common belief culture of the crowd. The detailed and, usually the judgment should be based on the general public for substantive standards, if in the field of industry behavior judgment, behavior mode substantial judgment with specific rules of existence and influence and industry field is usually more fixed and universal; if in the non industry domain, behavior norms and customary practice is to society specific to a particular cultural region popular to judge whether the behavior is usually and universal; (3) removing conditions: value judgement on the behaviour and the appropriateness and legitimacy standard price, the German scholar Qi Pufu thinks that the value of standardization reflects a widely accepted patterns of behavior.[33]Standard specification value is the value idea which most members of society have in common, and this concentration value reflects the overall law and order to the constitution as a guide. If the behavior of the core conditions generally applicable and general judgment is a kind of social standard, then exclude condition behavior proper and legitimacy of judgment is a kind of legal standards. As Dr. Chen Xuan says, only in this way, to avoid the bad habits of society or inappropriate behavior usually with considerable social coat to exclude illegal, it expressed a cautious and conscientious. We have occurred in 2008 Sanlu poisonous milk powder incident as an example, although executives accused Tian Wenhua and other enterprises are trying to its behavior behind the existence of a professional field for shirk responsibility, even if the defender also think that the industry is tired all the blame on the evil wind Sanlu is unreasonable.[34]However, although the industry in the field of customary rules have representation on the behavior of general and universal, but because of serious damage to this customary rule to the vast number of consumers health and hidden danger, the overall law and order in weighing the pros and cons that public healthy life of the common good values and good law and order (the acts in violation of the provisions of the food safety management law and criminal law) denied the industry and management rules, and shall not qualitative evaluation on it, and ultimately to act as illegal and criminal acts shall be treated, and restrain by law on the behavior of people, which eventually obtain a proper conclusion. To make a long story short, judgment standard of social considerable as behavior of no value, and take three steps such as to specific judgment method is desirable.

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[1]Amin Kaufman's point of view. See Wang Anyi: "in the criminal law act without value and research" results no value, Chinese People's Public Security University press, 2005 edition, page sixty-sixth.

[II]Zhou Guangquan: "criminal law" to the degree, China University of Political Science and Law press, 2004 edition, page 207th.

[3]Zhou Guangquan: "on the theory of act without value", "comparative study" set in 2003 fifth.

[4][Japan] Otsuka Hito: "the basic problems of crime", translated by Feng Jun, China University of Political Science and Law press, 1993 edition, page 116th.

[⑤]Chen Xuan: "the German criminal law results in no value dualism and the Enlightenment of" value and behavior, load "Law Review" in 2011 fifth.

[6][de]G · takobs: "the protection of criminal law: what benefits or specification? "Carrier", "comparative law research in 2004 first.

[7]Jakobs's view (Germany). Turn the specification from Zhou Guangquan "theory in the science of criminal law violation", set "global law review" in 2005 second.

[8]Zhou Guangquan: "the benchmark and illegal judgment without value", "social science" China carrier in 2008 fourth.

[9]Fujiki Hideo, Itakura macro view. Quoted from Zhou Guangquan: "benchmark and illegal judgment without value", "social science" China carrier in 2008 fourth.