The first chapter Introduction

First chapter The criminal law

The first section The concept and classification of criminal law

1,  The concept of criminal law

The criminal law stipulated crime and its legal consequences (mainly is the penalty) the sum of the legal norms.

1979Years7Month1DayThe fifth session of the National People's Congress, the second meeting of the new China first criminal law, the law of self1980Years1Month1DaySince the implementation of. In order to adapt to the market economy under the conditions of punishing crimes, protecting people's needs,1997Years3The penal code in fifth session of the Eighth National People's Congress on wine was revised, formed the new criminal code. The guiding ideology of the revised criminal law is: to establish a relatively complete criminal law unity has China characteristic, attention,; maintain the continuity and stability of the criminal law; the more general provisions, try to make specific provisions.

Criminal law is an independent law. Crime in the criminal law, beyond the other the scope of legal regulation; criminal law is not in violation of other laws of criminal sanctions, but according to the specific objective evaluation, to judge whether a certain behavior need to be given criminal sanctions;Criminal law since ancient times as a separate legal play their function; most of the concept of criminal law has its specific meaning, not necessarily restricted by other legal concepts.

In the criminal law and civil law (generalized) classification, the criminal law belongs to the criminal law. The criminal law is that investigation, about crime and legal criminal responsibility, realization. The provisions of the criminal law of the crime, the legal consequence is the penalty, which belongs to the criminal law.

In the classification of substantive law and procedural law, criminal law belongs to the substantive law. Criminal law and procedure law of criminal procedure law belongs to the interdependence, mutual use; criminal law, criminal procedure law is the form, the criminal procedure law interpretation must comply with the spirit of the criminal law; the provisions of the criminal procedure law in some extent restricts the interpretation of criminal law. Not only such, and criminal procedure law to study some questions of criminal law.

In the classification of public law and private law, criminal law belongs to public law. Dividing standard of public law and private law is different, but generally, criminal law belongs to public law. Therefore, criminal law (legislation) and application (Si Faquan) are limited, the legal principle of crime and punishment has become the essence of the criminal law.

Two, the classification of criminal law

Criminal law can be divided into broad and narrow criminal law criminal law. The generalized criminal law is the sum of the legal norms about the crime and its legal consequences, including the criminal code, separate criminal law and accessory criminal law.

Criminal law is promulgated by the state the name of the legal system, to the criminal law provisions of crime and criminal responsibility. China's "criminal law of the people's Republic of China", is the criminal code.

Is the state to decide, regulations, supplementary provisions, regulations promulgated by the provisions of a separate criminal matters, a kind of crime and its legal consequences or the criminal law. "Concerning the sale of foreign exchange, evasion and illegal trading in foreign exchange crime decision".

Accessory criminal law, refers to the criminal norm supplementary provisions in civil law, economic law, administrative law, criminal law in non.

There is no real China subsidiary criminal law.

After the promulgation of the new criminal law, some provisions of administrative law, economic law and other laws in form, but generally reaffirmed the related content of criminal law. (often expressed as "the purchase of a crime, shall be investigated for criminal responsibility in accordance with the provisions of the criminal law"), but not to the criminal law explanation, supplement, revise the substantive provisions. The narrow sense refers to the penal code of criminal law.

Criminal law can be divided into general and special criminal law criminal law. Ordinary criminal law refers to the nature and effect of generally applicable criminal law, criminal law is the general criminal law. The special criminal law is only applicable to specific people, especially, in particular or special events (criminal) law. In general, the single criminal law and accessory criminal law belongs to the special criminal law. When a certain behavior belong to comply with the provisions of criminal law and criminal law is common especially, should be based on the special law is superior to common law principle applies only to special criminal law.

The special criminal law should be applied to higher potency.

Criminal law can be divided into the form of criminal law and criminal law in essence. Criminal law is from the appearance or name (form) will be aware of the criminal law, criminal law and special law is. Substantive criminal law refers to the appearance or name does not belong to the criminal law, but its contents stipulated the crime and its criminal responsibility or legal terms, subsidiary criminal law that is. The characteristics of criminal law determines its easily been aware of3, and deterrence, the serious crime should be stipulated in the criminal law. Substantive criminal law are easy to be neglected, and deterrence whistle, so serious crimes should not be prescribed in the substantive criminal law.

The criminal law into domestic law and international criminal law. The domestic criminal law is applicable to field the same domestic criminal law. International Criminal Law is a word has three different meanings: one is the international criminal law and criminal law in the world, is a supranational]The criminal law, to be applied in the whole world, the world is not the existence of the international criminal law. Two is a violation of principles of international law (or violation of the common interests of mankind) crime and law. China's criminal law theory is generally used in the sense of the concept of international criminal law.

The three is about the scope of application of criminal law law, namely the effect, on the domestic criminal law space jurisdiction, legal effect, foreign shape judgments of international criminal judicial assistance. The first international criminal law sense, refers to the criminal law.

 

 

The second section The nature and task of the criminal law

Nature, criminal law

The unique attribute of criminal law is different from the other laws

Shape law is stipulated crime and its legal consequences, in other words, what crime shape law prohibited; and the provisions of other laws are generally illegal behavior and its legal consequence. The specific nature, make the criminal law has become a special law.

Departments of law are to adjust and protect the one aspect of the social relationship. Such as civil law only adjustment and protection of property as well as the relationship between the part and the property related personal relationship; marriage law only protect and adjust the marriage and family relations, and so on.

Many aspects of the criminal law is to protect the person, property, economy, marriage and family, social order and Law (the law of the protection of interests).

The criminal law is not integrity, first of all, the criminal law is not the will of all the law act as crime; secondly, even seriously violates the law profit behavior, but because of reasons of policy, the legislature may not be defined as criminal; finally, penal code is always has limitations, some serious legal interest infringement behavior may also be missing. The incompleteness of the criminal law, judicial departments to strictly abide by the principle of legality.

The General Department of law is also applicable to general illegal behavior of coercive measures, such as compensation for the losses, warning, administrative detention. The severity of the force method is far better than the penalty, and in many cases, the parties may settle on their own. The legal consequences of criminal law is punishment, criminal law is a compulsory means the most severe. Not only that, in most cases, between the offender and the victim are not allowed to discuss events.

The criminal law is complementary, that only when the departments of law are not sufficient to protect a law, the criminal law protection; only when the departments of law is not enough to curb some kind of harm behavior, the criminal prohibitions. There are many departments of law, the need to protect the law Yidu first by the department law to protect; only when the general departments can not fully protect the interests, needs the protection of criminal law. This is because, coercive methods of criminal law is mainly the penalty, and the penalty as a two edged sword, used properly, then the state and the individual two victim.

Due to the protection of criminal law in the other law can not fully protect the legal interest of criminal law sanctions method, and the most severe, which makes the criminal law in fact become other legal protection. Other legal adjustment of social relations and to protect the legal interests, also with the help of the criminal law to protect and adjust; no criminal law as the guarantee, other departments are often difficult to be completely implemented. This is the criminal law and other legal relationship is one of the difference is the criminal law, and other laws.

Two, the task of criminal law.

Summary of the task of criminal law for the protection of law, the protection method is to prohibit and punish criminal acts violating the legal rights. Punishment and protection of close contact; do not use punishment curb crime, would not have the protection of law. Punishment is the means, protection is the objective. This requires judicial personnel in the application of the criminal law, to protect the legal interests for the purpose, not to punish them.

The concept of the task of criminal law and the function of criminal law is not the same. The function of Criminal Law refers to the criminal law of reality and may play a role in.

First: the behavior regulation function, refers to the criminal law has made on the evaluation of criminal behavior norms are clear function.

Its specific contents, the criminal law will be act as crime and give punishment, show that the behavior of negative evaluation in law (evaluation function);

At the same time, ordered the people not to conduct such a crime inner meaning decided (decision function)

Second, legal benefit protection function, refers to the criminal law has the protection of the interests of the law against crime and the threat function. Crime is the violation or threatened legal action, criminal law to prohibit and punish crime, to protect the legal interests.

Third, the function to protect liberty, refers to the criminal law is to protect citizen's freedom without undue infringement of state power of punishment function. According to the principle of legality, as long as the act does not constitute a crime in the criminal law, he is not subject to criminal punishment, the criminal law of the state organs were restricted; to the crime person also can according to the provisions of the criminal law to give punishment. Therefore, the criminal law is a "big charter" good people, is a "crime of the charter".

How to understand and deal with three kinds of functions especially the relationship between the criminal law scholars, is the world's long-term exploration and debate. Because the legal benefit protection function mainly rely on the declaration and application of punishment to achieve; the function to protect liberty depends mainly on the limitation of penalty and realize the. How to maximize the protection of law, and to maximize the protection of freedom, becomes the topic.

 

The third section System and the interpretation of criminal law

One, the criminal law system

The criminal law system, is refers to the composition and structure of the penal code.

The penal code consists of two parts: the first times is general, and second for specific, otherwise a supplementary provisions. General principles are general provisions, specific content for the specific provisions of the general provisions applicable to specific provisions; not only, but also applicable to other laws with penalty.

 

Up to chapter. General is divided into five chapters, respectively, the task of criminal law, the basic principles and scope of application, crime, penalty, other provisions of specific application, the specific provisions of punishment; a total of ten chapters, which provides ten kinds of crime.

 

Chapter for the festival. Festival is a basic unit, is the expression of criminal law norms, the basic unit is the penal code. All the articles of the criminal law code with the sequence number of the unified arrangement, from the1Through article452A uniform number, not affected by coding, chapter, section division.

For payment under article, paragraph is a unit, not numbered, whose logo is another paragraph.

Under paragraph is a.

The criminal law is statutory, so the expression should conform to the rules of grammar. When the same terms of posterior segment to make instead, exceptions, limitations or supplementary provisions to the front content, often use "but" is a word to be said, "this text but" called "proviso" (but before the content referred to as "the"). But the following: (1In contrast to previous (said)2The earlier said the relationship between the limit), (3On the relationship between anterior (exception) said4The complementary relationship) said the earlier.

But for the accurate expression plays an important role in the legislative intent, but can not be ignored in interpretation and application of criminal law. Because with the front instead, but with that exception and other functions, so it can not easily criticized provisions inconsistent.

Two, the interpretation of criminal law

(a) the concept of criminal law interpretation

The interpretation of Criminal Law refers to the real meaning of the provisions of the criminal law.

Any criminal law is necessary to explain the. First of all, the content of criminal law is composed of words, any language despite the core meaning is clear, but always to the brink of expansion, the extension of fuzzy, need through the interpretation of criminal law language extensions for marginal; most always has many meanings, need through the clear explanation of criminal law should be what kind of meaning. In addition, there are many norms in Criminal Law (such as "pornography") and value concept of pure (such as the plot "bad"), must through the clear explanation of its meaning. Secondly, the provisions of the criminal law of various types of crime, are the result of abstracting the crime phenomenon, not detailed description of specific performance of various crimes, but the reality of the case is specific, there is distance between and criminal law and case. The criminal law is applicable to the specific case, must explain the provisions of the criminal law. The criminal law is relatively stable, if criminal law applies to stable development and change of the situation, we should explain.

The goal of criminal law interpretation: subjective interpretation and objective interpretation of round of battle. That the subjective interpretation, the interpretation of criminal law, legislators in the development of criminal law is to seek views then, intentions and values (the legislator's original intention). Objective interpretation, interpretation of criminal law should aim at the objective meaning exists in the criminal law, criminal law and not lawmakers the subjective meaning or legislative intent. The compromise said that two kinds of explanation on harmony, or in the theory of objective interpretation and supplemented with subjective interpretation.

Criminal law once made, he is a kind of objective existence, the distance and the original intention of legislation, need to explain the meaning of words according to the objective of criminal law is statutory,; the objective meaning of words to find the legislative intent.

The object of criminal law interpretation is the criminal law, criminal law is also stated in the text. Constitutional interpretation is not only a method of interpretation, but also is an important principle of criminal law; interpretation must conform to the constitution.

(two) the effectiveness of criminal law interpretation

On the criminal law interpretation conclusion does not have the effect. Explain the informal criminal law, that is not authorized by state organs, organizations, social organizations, academic institutions and individual citizens of the interpretation of criminal law, have no legal effect, but it has the important reference value to the criminal judicial and legislative activities, plays a significant role in improving the legal awareness of citizens.

The interpretation of criminal law, mainly refers to the legislative interpretation and judicial interpretation.

Legislative interpretation of criminal law, refers to the enactment, made by the legislative provisions of criminal law interpretation of the meaning of the.

The judicial interpretation of the Supreme People's court, refers to, the Supreme People's Procuratorate on judicial and procuratorial work in the specific issues concerning the application of law explanation.

(three) methods of criminal law interpretation

Method of interpretation of criminal law is divided into two categories: literal interpretation and logical interpretation

1, literal interpretation, refers to the criminal law terminology meaning and interpretation method is usually used to explain the criminal law. Literal interpretation is mainly based on the meaning, grammar, punctuation and words of the title. Literal interpretation is a basic but not simple interpretation method. If the literal interpretation conclusion is reasonable, there is no need to take the logical interpretation method: if the text interpretation conclusions unreasonable or produce a variety of conclusions, there must be a logical explanation.

2Logical interpretation refers to the criminal law, refer to the cause, reason, history and other related matters, in accordance with the spirit of the legislation, interpretation of criminal law method to clarify the true meaning of. The reason mainly has the following several:

(1) expanding interpretation. The criminal law provisions of the literal meaning than the real meaning of criminal law usually narrow, so the expansion of the literal meaning, the true meaning of the criminal law.

If completely beyond the language may have meaning, it is against the legal principle of crime and punishment of the analogical interpretation.

(2Narrow interpretation). The criminal law provisions of the literal meaning than the true meaning of criminal law is wide, so limiting the literal meaning, the true meaning of the criminal law.

(3Of course, explain). The provisions of the criminal law does not express a certain matter, but according to the formal logic, specification and the attributes of things and of course the truth about the matter, interpreted to include within the scope specified in the.

(4Against interpretation). According to the provisions of the criminal law interpretation of positive expression, derived the opposite meaning.

(5Correct interpretation). The error text view of criminal law, criminal law text to be corrected, to clarify the true meaning of interpretation of criminal law.

(6) system interpretation. According to the provisions of the criminal law in the criminal law in the position, contact the relevant law meaning, to clarify the legal intention interpretation method. System interpretation aims to avoid interpret out of context, so that the overall coordination of criminal law.

Relative positive words of criminal law is in order to realize the harmony and justice of criminal law, therefore, the relative interpretation of language, interpretation is essentially system.

(7The historical interpretation). According to the development of criminal law and the historical background of the origin and development of criminal law, the provisions of the criminal law interpretation method to clarify the true meaning of. According to the historical reference data that conforms to the times conclusion. Focusing on the historical causes of criminal law changes.

(8Comparative interpretation). The relevant provisions of the criminal law and foreign legislation and case law as a reference, so as to clarify the true meaning of criminal law interpretation.

Comparative interpretation, differences can not be ignored in Chinese and foreign criminal law in essence, content, style, name not only the literal expression and crime, focus on the status of a crime stipulated in the criminal law system in the provision, to understand the different meanings of the same words some of the criminal law in different countries.

Any interpretation must accord with the purpose of criminal law. The so-called objective interpretation, is refers to according to the criminal law, the provisions of the criminal law interpretation method to clarify the true meaning of. When different interpretation methods draw several conclusions cannot be drawn up or conclusion, on the purpose of interpretation to the final decision. In determining the specific elements of crime, to protect the legal interests must be guidance. Objective to explain the premise is the right to determine the purpose of criminal law. Speaking of the criminal law, it is difficult to determine the specific aim is specific provisions.

 

For example; larceny objective, is the protection of ownership of property, or the protection of possession? The bribery crime objective, is fair protection act of duty, and the duty behavior can not be bought?

In this regard, needs according to the constitutional principles and concepts of criminal law and the reality, to take a variety of ways of explaining to determine.

The interpretation of criminal law, interpretation must conform to the principles of legality, explain the conclusion must be consistent with the purpose of criminal law.

 

The second chapter The basic principle of criminal law

The basic principle of criminal law, refers to the criminal law itself has, throughout the criminal always, must be widely followed with standards overall, fundamental. The basic principle of criminal law is a concrete manifestation of the basic principles of the rule of law in criminal law, is a special manifestation of the joint standards in every law must follow in criminal law.

But the basic principle of criminal law has its own characteristics.

The new criminal law clearly stipulates the three basic principles of criminal law, which is the principle of legality, equality principle of criminal law, the principle of suiting punishment.

 

The first section The legal principle of crime and punishment

Ideological foundation, the legal principle of crime and punishment.

The basic meaning of the principle of legality is, "no crime without law", "no penalty without law making it so".

The ideological basis of the principle of legality is democracy and respect for human rights.

Because the legislature represent the will of the people, therefore, the criminal law also reflects the demands of the people. The formulation of criminal law, the judicial process, judicial organs in criminal law, but also the implementation process of the will of the people. The behoove formed the legal principle of crime and punishment in legal doctrine.

The judicial authorities can not arbitrarily interpretation of criminal law, especially not the analogy to explain.

Justice and fairness is of course the demands of the people, the legislature will make people according to criminal law, must reflect the justice and fairness. So, the criminal law must provide phase equilibrium and crime penalty, and prohibition of cruel punishment; and balanced standard values are generally at the same time.

In order to protect human rights, will not affect people's freedom of action, the people's nature and consequences beforehand can predict their behavior, must be clearly defined crime and punishment. Respect for human rights and make people have to predict the possibility is a meaning.

The premise to predict the possibility of nature and consequences of their behavior with is a prior statute, this is the law; the law cannot afterwards make people have to predict the possibility, therefore, must be prohibited in criminal law retroactivity; if the premise is written under the analogy interpretation, people cannot predict their behavior whether it will be the analogy to explain for the crime, therefore infringed the freedom of the people, it must prohibit the analogical interpretation. Must have a clear, ready to accept either course, if vague or contradictory, behavior in a dilemma, which is the principle of criminal law.

Two, the basic content of the principle of legality

(1) law (written law)

The legal doctrine of the principle of nullum crimen sine lege required, refers to the crime and penalty provisions of the law must be written law; according to the statute law conviction and sentencing the judge. The specific requirements are: the provisions of the laws only crime and punishment is the laws enacted by the legislature of the administrative organs, not the development of criminal law; crime and penalty provisions of the law must be expressed by their general character; customary law may not be used as sources of criminal law; judicial precedent nor as sources of criminal law.

China's legislature has not entrusted administrative authorities to formulate the norm of criminal law. China strictly follow the requirements of the principle of legality.

The case can not be the legal basis of conviction and sentencing, the judge has no right to create new charges.

(two) (retroactive law prohibited retroactive)

Retroactive law, refers to the behavior of the only applicable law, and shall not apply behavior law (retroactive).

Application of post method, means that people must comply with the act does not exist "law", this incredible. The application of the criminal law effect often leads to the penalty, and the penalty is a deprivation of pain, so compared with other department law, criminal prohibitions on afterwards method is very strict.

Retroactive law is to protect the freedom of the people of the requirements.

People always according to the prevailing legal plan and implement their own behavior; in this case, the person is free, because the law in force can be predicted, people can freely acting within the law. Because of retroactive law is to protect the freedom of the people, therefore, retroactive law only bans the defendant is not conducive to the retroactivity, if the law in favor of the defendant, can be retroactive application of the law.

Prohibited retroactive is a judicial principle, but also the legislative principles.

According to the principle of predictive likelihood, the following practices prohibited:

(1) will act does not prohibit the behavior to be punished;

(2The behavior) despite laws banning but not on the prohibited acts to be punished;

(3) after reducing crime and increase the possibility of crime;

(4After raising punishment);

(5) change rules of criminal evidence, it allows to fewer or less simple evidence as the conviction according to.

(three) prohibit the analogical interpretation

Prohibition of analogy interpretation is a content of the principle of legality. The analogy to explain, is refers to the constitutive requirements of specific facts and the law to judge the basic similarity, the legal effect of the latter is applicable to the former. For example, "criminal law" article237The provisions of compulsory indecency women sin; if it is considered that the coercive indecency male behavior has constituted the coercive indecency women's sin, is the analogy to explain.

Prohibition of analogy interpretation can be explained by democracy, also can be predicted by a possible explanation. The legislature through the text describe the legislation, therefore, in the interpretation of criminal law, only have in the legislative text within the meaning of the interpretation; at the same time, because the criminal law itself has its own system, so in determining the meaning of the text, while maintaining the overall meaning of criminal law should be the premise of interpretation. If the analogy to explain, it means that the meaning of penal code. In the criminal law to explain may have meaning, will not damage the people predict the possibility.

So the analogy to explain the conclusion, people can not predict the consequences will inevitably lead to the nature of their actions, or cause the behavior of atrophy, or cause people cannot predict the case subject to punishment.

The legal principle of crime and punishment does not prohibit further explanation, but how to determine the extension limit interpretation and analogical interpretation, is a difficult problem. Formally speaking, expand the interpretation of the conclusions, not beyond the criminal law for may have meaning, namely, within the meaning of the word "range" of criminal law interpretation; and the analogy to explain the conclusion, for may have meaning beyond, namely, in criminal law the meaning of the word "range" interpretation. From the focus point of view, expand the interpretation of focus on criminal law itself, is still the interpretation of normative logic; analogical interpretation focuses on criminal law besides the fact, is more of the facts. From the logical method, expanding interpretation is a concept expansion to delimit the criminal law, which should be punished behavior included in this concept; analogical interpretation is to recognize an object behavior is not punishment, but with similar behavior the behavior specified with the same harm on the grounds, as a punishment object. Essentially, within the expanded interpretation conclusion hit citizens forecast possibility; analogical interpretation is beyond the scope of citizens to predict the possibility of.

(four) the absolute prohibition of indefinite (period) punishment

The legal punishment of criminal law must have particular species (penalty) and specific criminal amplitude (punishment). If the criminal law for certain acts did not provide the penalty, then, according to the "no legal penalty is no crime" principle, the behavior is not a crime. No specific provisions for the punishment and the punishment (Indefinite Penalty), judicial organs because there is no suitable punishment standard, in fact can not be investigated for criminal responsibility. So, different times of the criminal law on the crimes are usually specific kinds of punishment and the punishment.

In fact, any kind of specific crimes may have different circumstances, the different harm degree and different bodily harm, and the legal punishment can only be absolutely sure to harm behavior of average level of this kind of crime to be determined, so instead of against those plot slight, personal danger lighter part of the criminal human freedom.

So, the criminal law in modern countries have provided to determine the relative legal punishment. A judge should not only to determine the relative penalty for punishment according to discretion, and must make the discretion of specific, namely must announce specific penalty, but not announced the indefinite penalty. To determine the relative legal punishment, a limit the discretion rights, on the other hand, is conducive to the realization of the equilibrium, and in conformity with the rule of law requirements.

(six) no punishment is undeserved punishment behavior

Clear of constitutive elements of crime, does not mean that the rationality of the scope of punishment. If the provisions of the criminal law: "in addition to my house, in the more than three people smoking, a years in prison." Although we can not deny its clear, but it is not appropriate to achieve the criminal content (for positive) requirements. Prohibition of improper punishment punishment behavior, can only refer to the punishment according to the crime has or is punished behavior rules. Crime and punishment specified by the legislature, the legislature can not determine the range of heart so crime, but can only be punished according to the provisions of the criminality.

Criminal law can meet the following conditions: (act as crime1) this behavior no matter from which angle, the aggressive legal interests are very serious, and most people can not tolerate, and advocated the regulation in criminal law;

(2The applicable sanctions method) is not enough to prevent this kind of behavior, not enough to protect law benefit;

(3Application of criminal law penalties for such acts), will not lead to a ban on social beneficial behavior, not the people's freedom from unreasonable restrictions;

(4) to this kind of behavior can be objectively determined and equal treatment in the criminal law.

(5Application of criminal penalties) this behavior can be prevent or inhibit the effect of action.

When a violation of legal interest has reached the degree of punishment should be published, it needs to be regulated as a crime.

(seven) prohibit the imbalance, maltreat the penalty.

Prohibit the imbalance penalty, of course, is an important content of the principle of legality. In order to realize the balance of crime and penalty, must oppose abuse punishment. Cruel punishment, refers to the unnecessary mental, physical pain as the content, the humanity is considered to be cruel punishment. The degree of punishment from heavy to light, is the historical development and the inevitable result; the light punishment is the inevitable trend of historical development.

Does not mean that should or could exceed era to light punishment. The criminal was deprived of pain is punitive penalty and intrinsic attributes. Evil is. Receive rewards for one's virtuous deeds, naive idea of justice decided no pain content measures in any age can not be the penalty.

The pain degree of punishment, should be measured by average value of their own national conditions, National People's material, spiritual life and social outlook.

Three, the realization of the principle of legality

The basic principle of criminal law, is not only the formulation of the principles of criminal law, and criminal law, the principle of interpretation of criminal law. But the crime punishment legal principle legal, implementation is not equal to the crime punishment legal principle.

(1Realization of the legal principle of crime and punishment), to establish the concept of rule of law.

(2Realization of the legal principle of crime and punishment requirements), the rationality of the judicial system.

(3Realization of the legal principle of crime and punishment), a reasonable explanation of criminal law. Follow the principle of legality must doctrinal interpretation.

(4Realization of the legal principle of crime and punishment), correct conviction and sentencing. The strict distinction between crime and non crime, this crime and other crime, one crime and several crimes, the legal consequences and the choice of reasonable.

 

The second section equal application of criminal law principle

The basic meaning and ideological foundation, principle of equal application of criminal law

The principle of equal application of criminal law, means that the criminal law in according to its content should be all applicable occasions, are to be strictly applied. The principle of equality before the law in criminal law.

(1Equal application of criminal law) is to protect people's freedom demands. The freedom of the people to predict the behavior of the legal nature and the legal consequences for the possibility of the premise.

To predict the possibility not only depends on the behavior of the people before the existence of explicit legal provisions, but also depend on the behavior of the judicial organ to the same or similar behavior treatment conclusion.

(2Equal application of criminal law is required) protection of legal interests and the guarantee of freedom.

(3Equal application of criminal law criminal law itself) is required. The criminal law is first expressed as the standard, is the direction or order the judicial staff to decide, determine whether the act constitutes a crime, a specification of how the criminal punishment. As the criminal law norms, the equal application of criminal law enforcement requirements for all. Norms of behavior norms of criminal law also prohibits ordinary people to commit a crime, as a behavior norm, the criminal law to comply with the requirements of the criminal code the equality of all people. The universality of criminal law norms, applicable object of the criminal law is the common people and events. Only the equal application of criminal law, the criminal law was able to maintain its characteristics.

Equal application of criminal law is the basic requirement of the rule of law. To make the rule of law in force, there should be a long without exception applicable rules, which is more than the contents of rules is more important. The rules so that we can correctly predict the actions of others, and this requires it is applicable to all cases. Method the effect that the execution.

The basic content of the two equality principle, applicable law and Implementation

Equal application of criminal law principle, a handful of inequality, has greatly undermined the rule of law, the impact of the social and psychological balance, and hinder economic development, hinder social progress.

The basic content of the principle of equality in criminal law application mainly has following several aspects:

First of all, equal protection of law. (no matter who, is the legal interests of the main local protectionism serious violation of the equal application of the principles of criminal law)

Secondly, equal to the crime.

The discretion of punishment again, equal. The degree of punishment. Equality does not mean that there is no difference, as the principle and objective difference in accord with justice, criminal sentencing standard universal time, is appropriate.

Finally, the execution of the penalty equal to. Compared with the principle of legality, the principle of equal application of criminal law to achieve more difficult. Truly realize the principle of equal application of criminal law, to the reform of the judicial system, ensure the judicial staff can independently according to the trial of criminal cases, the need to reform the criminal justice, ensure the trial procedures to ascertain the facts of the case.

Nevertheless, history of the pursuit of equality of almost no end.

For example, damage degree and both a and B, committing a crime the dangerousness of the same, but two person of the status of the property far: a millionaire, B broke. In view of the crime itself, should be sentenced to the same penalty, otherwise not equal; the property status, should be sentenced to a fine, to B should be sentenced to a fine, or the two actually suffer inequality. To achieve an equal, will cause another inequality. But we can not give up the pursuit of equality.

The third section The principle of suiting punishment

One, the crime punishment adapts the principle of ideological basis

The crime punishment adapts (sometimes called suiting punishment) is the basic meaning of, "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt.

 

The crime punishment adapts, derived from the concept of karma, is to adapt to a legal thought of simple people's sense of fairness. Crime is the prerequisite of criminal penalty, criminal law is the result of a crime. From the crime itself and the criminal penalty itself, so not allowed. Therefore, to adapt to the basic relationship between crime and punishment principle is the.

The purpose of punishment is to prevent crime, the discretion of criminal law must also be conducive to the realization of the purpose of punishment. To adapt to the needs of penalty is the penalty purpose.

Two, the basic content of the principle of suiting punishment to

Principle of suiting punishment to crime, crime is heavy sentencing to heavy, light to light sentencing crimes, the crime sentencing to balance between the various legal provisions, the end can not be lightly than sin. Under the cognitive ability and the current level of technology, to adapt to the harsh penalty crime can only be assigned to a serious crime.

The principle of suiting punishment to crime, can be divided into the following three aspects:

(a) the penalty and the crime nature adaptation

Essence of crime, subjective elements of a crime is the concept of unity was the nature of the crime. It is stipulated in criminal characteristics. Quality of different crimes, marks, the infringement crime threat to direct the spearhead against different interests. All kinds of crime has the different harm degree, which determines the severity of the essence of criminal law. Judicial organs in the sentence, what is first determined to adapt with the nature of crime the crime legal punishment, adhered to this point, in general, to guarantee the right of sentencing, even in the specific choice of kinds of punishment, punishment is slightly biased, also not lopsided penalty.

(two) the penalty and the criminal suit

Qualitative case correctly, solve only the correct selection of statutory penalty problem, does not mean that sentencing results than the completely correct. In the same crime crimes in different cases, the circumstances of the crime is not the same, the damage is also not quite the same. The harm degree to reflect the specific case of every hue of the punishment, sentencing is behoove to also must pay attention to the circumstances of the crime penalty and adapt to. The criminal law of our country adopt relative legal punishment, punishment, punishment and choice for large, according to the specific situation of each case specific circumstances of crime and criminal punishment, respectively, make the criminal law to adapt to the real harm their crime.

The circumstances of the crime is not a crime, but the crime of subjective and objective are closely linked, reflecting the subjective and objective condition or depth, thus affecting the various facts of crimes.

(three) physical danger crime and penalty people adapt to

Danger crime person, is refers to the crime which does not directly reflect the gradation of crimes, but that he on social potential threat and change itself. Includes the crime before and after the crime situation. In today's world the penalty thought, pay attention to curb crime penalty to make the future trend. Indicates the transformation of the degree of difficulty and the possibility of criminal size.

To sum up, the principle of suiting punishment to crime and penalty, is by nature, the circumstances of the crime and dangerousness of the criminal suit for the content of the principle of. Judicial decision penalty for any crime, should adhere to the three "adaptation", the comprehensive measure, can not be neglected. These three factors are not the same. Play a major role, should be directly reflects the social harm of crime and the plot, rather than personal danger, danger play only a minor role. But, as the consideration of personal danger, the implementation of the criminal act only in himself, by judicial discretion of punishment, only then has the significance.

Three, the principle of suiting punishment to crime characteristics

The purpose of the crime prevention, the Penalty specified (punishment), the applicable penalty (sentencing), execution of punishment (penalty) and the realization of the three step. The principle of suiting punishment to crime shows different characteristics in various aspects of measurement of penalty, execution, mashed garlic.

The system of punishment, as a specific crime legal punishment penalty system and regulations. To accurately measure various criminal law prohibited, in a certain historical period, the degree of harm may reach a maximum and a minimum, so as to formulate the corresponding penalty specification. It focuses on the overall design of the harm degree of various crimes of macroscopic observation and containment measures. The system of punishment to crime nature, in order to ensure the quality of punishment and crime - to adapt, while taking into consideration the circumstances of the crime and dangerousness of the criminal.

 

The sentence based on the crime and legal punishment, according to the circumstances of the case and the dangerous degree of the crime person's body is different, the difference between policy, specifically selected appropriate declared trial penalty or decides to exempt from punishment. It focuses on the circumstances of the crime, danger and people.

Direct execution, that the inmates accept education and reform, eliminate the possibility of another crime, and to the social play a preventive role. Each criminal in prison performance is different, reflect the changes in their personal danger degree dynamic inconsistency. The execution process is a persistent embodies the principle of adaptation process. Its characteristic is the degree of risk is, change crime person, and the circumstances of the crime and the crime nature.

 

 

 

 

Article second

The fourth chapter The crime of

The first section The features of the crimes

A,Features of crime

The basic characteristics of crime, there are different views in theory of criminal law. Three features of traditional said, the basic characteristics of crime is the social harmfulness, the criminal law and should be subject to punishment. Three features are closely linked, in which social harmfulness is the most essential, is decisive, two other features are derived from the social harmfulness or extension.

Now, some people think that, the essence of a crime is the social harmfulness punishable by penalty degree, legal characteristics is the violation of criminal law.

It has also been suggested, crime essence and form two layers of meaning: in the legislative policy significance, crime which endangers the society shall be subject to criminal punishment behavior; in the judicial criterion of meaning, crime refers to the criminal law as criminal punishment.

According to the "criminal law" article13The provisions of the crime, has two characteristics: one is the social harmfulness, two is in accordance with the law shall be subject to punishment (Criminal Law)

Conclusion: as the social harmfulness of the basic characteristics of crime, is refers to the serious social harmfulness. Serious enough to require punished degree, would be a crime. In this sense, as the social harmfulness is the basic characteristics of crime, the social harmfulness punishable by penalty degree.

Only when the provisions of punishment for an action law, the behavior is a crime. The so-called "in accordance with the law shall be subject to criminal punishment, is a crime," it is this meaning. In other words, even if the law even penalty expressly prohibited certain behaviors, but as long as the criminal law has no provisions on the punishment (punishment) consequences, this behavior is often a crime.

The criminal law is prohibited by the criminal punishment. If a behavior in accordance with the criminal law should be subject to punishment, it shows that this behavior is a violation of the criminal law provisions, thus has the criminal illegality.

Two,Social harmfulness

Social harmfulness, refers to the aggressive behavior of the protection of criminal law. Legal interest is protected, the fingering interests; specifically, refers to the basic principles of the constitution, life interests protected by law, the objective might be infringed or threatened people. From the perspective of infringement, legal interest is called victim interests, namely the crime against or threats of interest. From the protection point of view, law is known for the protection of law, namely the protection of the benefit of law, or known as the object of protection.

The nature of the crime is a violation of the law.

Because of the social harmfulness is aggressive, against the interests of law so, only when the risk of a behavior to act and do harm or damage (the threat of law), the behavior that is harmful to the society.

Social harmfulness is the unity of quality and quantity. Not having the social harmfulness behavior is crime, criminal law to "plot remarkable slight harm not big, not be considered a crime", which shows a behavior, only a serious violation of the criminal law to protect the legal interests, can constitute a crime. This is determined by the characteristics of criminal law and our criminal policy. Indicates that the relationship between criminal law and other laws, for some kind of harm behavior by other legal treatment can effectively protect a legal interest, it should not be applied to criminal law. We are the basic criminal policy combining punishment with leniency, the minor and the harm behavior can not be punished for the crime, aware of this point, to grasp from the difference between crime and illegal behavior from the essence.

Social harmfulness is the unity of the relative stability and changeability.

"Relative steady", refers to a behavior (such as murder, rape and other traditional crimes) social harmfulness of material in a certain time, place, Colonel under more stable conditions. The relative stability of social harmfulness behavior, the criminal legislation should have relative stability. "Mobility", refers to the same behavior in different time, place, condition, its social harmfulness has no changes and development of size.

Any act, legislation and judicial organs always according to the social harmfulness evaluation behavior of social and historical conditions, admit it, not only has the significance of criminal legislation, and have important implications for the understanding and application of the criminal law.

Social harmfulness is the unity of objectivity and predictability.

The legislature is always according to the social and historical conditions, starting from the maintenance of national and people's interests, the nature of legal interests, behavior behavior through the investigation of violations of the measures, results, behavior and social development deviate degree, behavior and the objective laws of the deviation from the behavior itself, the person's mental state, behavior and other factors, to that sort of behavior of social harmfulness degree.

Judicial organs should to act according to the provisions of the criminal code of social harmfulness degree, on the other hand, according to the specific circumstances of review of criminal is not possible to specify and factors influencing the harm to society. This is clear, it is conducive to correctly evaluate the degree of social harmfulness, conducive to correctly handle the relationship between criminal legislation and criminal justice.

Three, criminal illegality

When a certain behavior "should be punished in accordance with the law," the behavior is illegal. Action is a breach of criminal law, means the violation of the prohibition of criminal law.

Criminal law for criminal acts prohibited, is reflected by the specification, or provisions of punishment is drum some actions to prohibit the behavior. Therefore, criminal illegality in fact refers to the behavior consistent with the assumed conditions, the standard specified in the further, acts of criminal law and the behavior with the element of crime is unified. In violation of the criminal law and criminal law is violated, any violation of the generalized criminal law prohibitive norm behavior, have criminal violation. From the relationship between criminal law and other legal norms, shaped it illegal for the performance of the two conditions: one is the direct violation of criminal law norms, the two is a violation of other laws and regulations but because of serious and in violation of the criminal law, so simple in violation of other laws without breaking the law behavior, not only have the criminal illegality.

Criminal law and social harmfulness is unified. Criminal law is prohibited certain behavior, because the behavior has the serious harm to the society, so social serious criminal illegality is the premise or foundation, form illegality is the social harmfulness legal expression serious. Can say, social harmfulness, is the essence of criminal law (substantive illegality); violation of penal code, is the formal illegitimacy. While formal illegality and substantive illegality is unified.

Criminal illegality is judicial authority legal standards of crime. The judicial authorities can not intuitively identified social harmfulness behavior is a crime, the criminal law can only be determined by specific criteria to identify whether an act constitutes a crime, also cannot attach other standards in addition to the criminal law.

 

Attached: intentional homicide, is the standard assumption (assumption, the specific provisions of criminal law norms in crime or crime)

 

The second section Classification of crimes

A,Theoretical classification

(a) a felony and misdemeanor

The legal punishment for the standard, the crime into felony, misdemeanor and police. Began in the1791Years of French Criminal code.

China's criminal law does not expressly the crime is a felony and misdemeanor, but from the general theory of crime is a felony and misdemeanor is entirely possible. Distinguish a felony and misdemeanor should generally be legal punishment as the standard, and not to the facts of the crime according to the standard. The general idea, minimum statutory penalty for3Years or more in prison crime as a felony, misdemeanor other crimes.

(two) the natural crime and statutory crime

Natural crime (roughly the same with the concept of criminal) to the statutory crime (roughly the same with the administrative and conceptual) classification long-standing, but distinguish standard is differ from man to man. Natural crime is a clear violation of the ethics of traditional crime of moral, legal crime is not obviously violate the ethics of modern crime moral. Because of this, the natural criminal social harmfulness becoming smaller and statutory crime, social harmfulness larger variability. The ethical content changing, natural crime and statutory crime has the distinction is relative.

(three) across the gap crime and non crime across the gap

Across the gap crime refers to the existence of time, places between the act and criminal result interval of crime. No time, occasion interval between act and criminal results of crime, is non vibration gap crime.

Two,Statutory classification

(a) a state crime and common crime

The national crime refers to the crime of endangering national security, in addition to ordinary crime refers to crimes of endangering national security crime. Provisions of China's Criminal Law Chapter of the crime belongs to the state crime, the provisions of the second to the tenth chapter of crime belongs to the common crime. But one of the tenth chapter "the provisions of the military crime of breach of duty" and belongs to the common crime is a kind of special crime. From the criminal law theory, a state crime and ordinary crime combined crime, called mixed crime.

(two) the crime of natural person and unit crime

Confession of crime, refers to the nature of crime. Unit crime, refers to the subject of unit crime crime. Many crimes (such as bill crime of fraud, crime of fraud on letter of credit), which can be implemented by a natural person, also can be the implementation unit.

(three) the identity and non identity offenders

With special status as subject or aggravation of penalty, reduce the statutory crime, called the identity. The identity includes the true status crime and non - standard status crime; the former refers to the special identity as a subject of crime as a crime, the crime of torture to extract confessions of the body must be judicial personnel, this identity is called the composition identity; the latter refers to the special status does not affect the conviction and sentencing of the crime of false accusation, subjects such as against a crime can be both the common natural person, also can be the staff of state organs. State organ personnel commits crime of false accusation shall be given a heavier punishment, the identity is known as individual identity. The identity outside of the crime is a non identity.

(four) dear dear action and non action

Dear action refers to that crime. The criminal law does not expressly provided for the crime handled only tell, belong to non dear action.

The criminal law will be part of the criminal provisions for dear action, mainly considering the following three factors: first, the crime is slight, does not belong to serious crime; secondly, this kind of crime often occurs between relatives, neighbors, colleagues, between the victim and the behavior has a close relationship; finally, the crime involving the victim reputation, any proceedings may damage the reputation of the victims.

(five) the basic crime, aggravated and mitigated offense

The basic crime refers to the criminal law provisions do not have the statutory aggravating or mitigating circumstances of crime. Aggravated offense is a criminal law provisions to the basic crime based stipulated aggravating circumstances and heavier criminal. , which can be divided into aggregated consequential offense and aggravated offense by circumstances, the implementation of basic crime with serious results, criminal aggravated criminal, called aggregated consequential offense; the implementation of basic crime by criminal law has other serious circumstances, aggravated criminal, known as the crime with aggravated circumstances. Reduce generally refers to the basic crime criminal law stipulated the crime based on mitigating circumstances and the lighter punishment.

 

 

 

 

The fifth chapter  Constitution of a crime

Characteristics and classification of crime is not identified in the legal standard of crime, according to the nature of the crime the crime does not comply with the legal principle of crime and punishment; principle of legality demands stipulated the conditions of various crimes, only to meet the statutory conditions, can be identified as a crime. "Crime" focuses on legal standards set up a crime. In other words, the crime is actually conditions of crime establishment.

The first section    Overview of a crime

A,The concept of constitution of crime

According to China's criminal law theory says, the constitution of crime is stipulated in the criminal law, the social harmfulness of an act and its degree, organic whole all the objective elements and subjective elements must have set up for the behavior of the crime. The constitution of crime and the crime concept both connections and differences. The concept of crime to explain the nature of crime and the basic characteristics of the concrete legal standards, crime is a crime; the concept of crime is the basis of constitution of crime, crime is a specific concept of crime.

For example, according to the "criminal law" article399Article1The relevant provisions of paragraph and in general, the establishment of this crime must have the following conditions:

(1) violation of the normal activities of the judiciary and civil judicial activity objective, just trust (crime object element);

(2The subject of crime is the criminal legal) reach the age, has identified the judicial personnel's ability to control (crime subject element)

(3) with perverting the law objectively, which used his powers to make the innocent accused, or harbor guilty man so that he will not be prosecuted, or contrary to the facts and the law in criminal trials to render judgments (the objective elements of crime);

(4) must be subjectively intentional, knowing that an innocent person to make him be prosecuted, or intentionally harboring a guilty person, or deliberately contrary to facts and the law (the subjective elements of crime). Integrated above four elements is the crime. The crime is composed of a series of subjective and objective elements, all elements between mutual connection, interaction, formed as an organic whole; the constitution of a crime by the criminal law "article"399The relevant provisions and general establishment; with the constitution of a crime that behavior is harmful to the society and receivable penalty degree; the constitution of crime is that the acts constitute the legal standard of the crime, regardless of whether the behavior happens in reality, the constitution of crime as the law always exists objectively.

Although our criminal law does not appear in the "crime" of the term, but the criminal law does provide a constitutive elements of crime must have, the theory of criminal law is the provisions of the criminal law of the crime, the criminal law provisions so, actually the constitution of a crime. In our country, the general provisions of criminal law and specific provisions of the constitution of crime as an organic whole, performance provides all necessary elements of crime in general, we only stipulate specific elements crime especially need to possess. Behavior conform to the crime constitution would suggest that its actions with criminal illegality.

Formed by a series of subjective and objective elements of constitution of crime, which is the elements of crime must have the conditions. The crime of subjective and objective unity tells us with all the elements, is the constitution of a crime.

Crime constitution is not an abstract concept of law, but the social harmfulness of crime law marker. That substantial standard of crime is an act of serious social harm, but if the judicial organ according to the behavior of social harmfulness of crime, inevitable in the bailiffs situation. Therefore, must by the legislative provisions in criminal law standard. To illustrate the social harmfulness behavior is crime in the conditions under which the establishment of crime constitutes a crime; so, must take the social harmfulness of crime as the substantive basis. Because of this, only those instructions on the social harmfulness and its degree is the important factor, will be the provisions of the criminal law is based on elements; similarly, if the act in accordance with the constitution of the crime, it shows that the behavior of social harmfulness of crime.

The constitution of a crime is that the legal standard of crime.

Crime constitution is the only legal standard that crime. Because the constitution of crime is that the legal standard of crime, and the fact that conform to the crime constitution (constitution of a crime) is different; the former is the law, the latter is the specific facts. The connection of the two obviously: the specific facts of legal crime structure, can be called the constitution of a crime.

The constitution of a crime and its theory is the product of the legal principle of crime and punishment. Statutory notice requirements, clearly stipulates the establishment of conditions of the criminal law of various crimes and legal consequences, the crime is the condition of crime. The legal principle of crime and punishment to crime. Crime is arbitrary for prisoners and protect the society, for society and guarantee their arbitrary double protection function.

The constitution of the crime as the law, is of great significance to the Criminal Justice (1) crime constitution provides the legal standard to distinguish between crime and non crime. Conduct according with the constitution of crime is the crime, crime or not.(2)Crime constitution provides the legal standard for this crime and other crime. Different crimes have their own different constitution of a crime, in accordance with different crime set up different crime.

(3) crime provides legal standard to distinguish between a crime and several crimes.

4.Crime constitution provides a legal basis for the distinction between felony and misdemeanor.

Two, the elements of constitution of crime

The constitution of crimes is composed of elements of constitution of crime, which is the sum of the formation of elements of crime constitution. From the epistemological point of view, constitutive elements of crime can be divided into common elements and concrete elements. The specific elements of a crime, is a specific crime (such as crime of theft, fraud) constitution must have concrete, is the social harmfulness of crime law marker. Every crime has its specific elements; the specific elements of any behavior only fit some crime, the establishment of crime can be; limits of this crime and other crime, is determined by the specific elements of the. Common requisites in constitution of crime, is refers to the elements of the establishment of any crime must have. The common element is abstracted from concrete elements. The specific elements of a crime of every hue, in different poses and with different expressions, but according to the principle of universality and particularity, universality and individuality, can be seen from the specific requirements of various crimes, scientifically summarized the common components in different kinds of crime, it is common to a crime. According to the theory of criminal law theory, the crime of common elements of the four aspects, namely, object of crime, the objective elements of crime, the subject of crime and the subjective elements of crime.

When the criminal law "serious" is the constituent elements, only if the circumstances are serious, be regarded as crime. When the criminal law "serious" is the constituent elements, the general circumstances of the act means that the social harmfulness to shall be subject to criminal punishment, shall be deemed to be a crime. Such as murder, serious often become the punishment to be upgraded basis or heavier punishment plot. The "serious" integrated elements of the constitution of crime.

Two,Crime elements

(a) the concept of elements of the elements constitute a crime

The organic unity of crime subject, objective elements of crime, the subject of crime and the subjective elements of crime and crime, also, each element is composed of different components, component elements, is the crime elements. Factors such as behavior, behavior, result, object, objective elements of crime; factors of age, identification and control ability, identity and belonging to the crime subject element; element, negligence, intentional purpose belongs to the subjective elements of crime.

Structure of constitution of crime can be divided into three levels: the first level is the crime constitution overall; the second level is the constitutive elements of crime, including the object of crime, the objective elements of crime, the subject of crime and the subjective elements of crime;

The third level is the specific elements of the various elements of the division, such as under the objective aspect of the crime of harmful behavior, behavior object, harm result. The third levels of content, can be described as elements.

The understanding of the requirements, understanding of the relationship between the depends on the elements and elements; if the deviation on understanding of certain elements of the elements, it will inevitably lead to deviation on the elements of knowledge. Therefore, the correct understanding and comprehension of elements, is a premise and a correct understanding of the elements of crime.

(two) classification of elements of crime constitution

1, objective elements and subjective elements

The behavior of the external, objective elements such as the objective elements, such as behavior, behavior, result object; that of the human heart, subjective factor is the subjective elements, such as intentional, negligence, etc.. Our theory of criminal law will age of the perpetrator, identification and control ability, identity as subjective elements. Abroad as elements of objective.

2, descriptive elements and normative elements

According to the criminal law theory, the elements and to identify if there is consistent with elements that explain, if only the understanding activity can be determined, the elements are descriptive elements; if need judge norm, value judgment can be found, these elements is normative elements.

Account of the elements of fact description or description; understanding and application of the differences do not affect the interpreter and the judicial values, so there is no dispute; judicial judgment to objective fact is in accordance with the constitution, so as not to understand different formed different verdict. Normative elements is a kind of norms, including the value judgment; difference of interpretation and judicial values will inevitably affect the understanding and application of it, so it is difficult to judge the dispute; judicial fact is in accordance with the constitution, therefore, often because of different understanding and the formation of different verdict.

The composition elements of the elements constitute elements of the elements and descriptive distinction is relative, the difference of two is not matter, but the amount of difference.

3, positive elements and negative elements

Active, positive that the elements of crime must have, this factor is positive elements. But there are no exception of criminal elements, this is the negative elements. Negative elements can be converted into positive elements of understanding. Although the negative elements because the specified differently, its significance and positive elements have no essential difference, but the two assessment of the relevant behavior still exists nuance.

4, common elements and non common elements

Common elements, elements of constitution of crime refers to the common element was established for any crime must have. For example, the behavior is the objective elements, elements of the establishment of any crime is needed; for example, intentionally or negligently, belongs to the subjective elements, elements and the establishment of any crime must have. Non common elements, refers to the element is not any crime is the establishment of a crime must have. For example, specific factor means is just part of the elements of crime must have, identity and purpose was to set up a crime must have some.

5The elements, written and unwritten constitution

The written constitution, refers to the criminal law of the elements. Most elements are written elements. The unwritten constitution, refers to the criminal law provisions on the surface not expressly, but according to the relationship between the provisions of the criminal law, criminal law to describe the relevant elements of the determined elements must have, the establishment of a crime.

On some specific crime, because as everyone knows the reason or for other reasons, criminal law there is no all elements of complete set down, but the judge was added in the application process.

In section second, the object of crime

The concept, the object of the crime

The object of the crime is the criminal law for criminal acts and violations of interest (interest).

First, the object of the crime is legal interest. Secondly, the object of the crime must be a criminal law to protect the legal interests. If a certain benefits only by moral standards or other social norms to regulate and protect, not by the criminal law or not by the criminal law and protection, it may not be the object of a crime. Finally, the object of the crime should be crime violations of the law benefits. The so-called "aggression", includes two types: one is the protection of criminal law cause actual damage facts, such as homicide behavior has caused the death of the victims; two is on criminal law protection of legal interests threatened, or that there is danger, such as homicide. Although it has not caused the death of another, but risk of death of another.

Thus, for the object of crime, should understand and grasp from two sides. On the one hand, the object of the crime that the purpose of criminal law, namely, the purpose of criminal law is to protect legal interests; on the other hand, the object of the crime that the nature of crime, the crime is the essence of the infringement of legal interests.

Two, the classification of object of crime

The object of the crime of criminal law theory usually divided into general object, the same object and the direct object.

The general object, refers to all the crimes of common violations of the law benefits the whole. The general object reflects the common essence of crime, any crime infringed upon the legal interests protected by the criminal law.

The similar object, refers to a kind of legal interest a common infringement crime.

The direct object, refers to the specific criminal violations of law benefit directly. (direct object can be divided into simple and complex object object.

A simple object, refers to a crime only violation of a specific interest, such as theft; complex object refers to a criminal act in violation of the above two kinds of specific interests, such as robbery, is a violation of personal, but also violated the property. According to the provisions of the criminal code to distinguish the main object and the secondary object).

Three, to determine the direct object

To understand the specific crime object, the crime of other elements of the interpretation is different.

For example, if the provisions of the criminal law of theft in order to protect the ownership, ownership from stealing prisoners there stealing back to his property, not to set up the crime of theft; however, if it is considered that the provisions of the criminal law of theft is to protect the possession, ownership from stealing prisoners there steal back his property act, but also against the theft. The establishment of possession, and theft. Obviously, the direct object clear specific crime, has great significance for other elements to explain crime. Determination of the direct object, should be based on the provisions of the criminal law as the basis. The basic methods are as follows:

(a) to determine the legal content according to the specific crime belongs to the class of crime

A variety of specific crimes, always belongs to a kind of crime, and the criminal law on the crime of similar to the law benefits content are clear or suggestive provisions, clearly the specific crime belongs to the class of sin, can through similar to the law benefits content, benefit contents are generally clear and specific provisions in the specific provisions to protect. For example, the criminal law fourth chapter, in order to protect citizens rights and democratic rights, the protection of the interests of the law in this chapter, the specific provisions, must be determined in a variety of personal rights and democratic rights. For example, the coercive indecency, insulting women sin, belonging to the infringement of personal rights crime, criminal law protection of legal interests of this crime should be women's sexual self decision rights, rather than the management of social order.

When the criminal law is a crime in order to protect the various benefits, but similar to the law benefits should be according to the content of the class it belongs to crime, to determine the main objective of criminal law, and not have the order reversed. For example, the provisions in the criminal law of the second chapter is the crime, crime of endangering public safety. Therefore, those who belong to this kind of crime in the crime, not only the violation of the law, public safety is domain specific, and in violation of a variety of legal cases, public security and its main content is domain specific. For example, the "criminal law" article123The provisions of the violent crime of endangering safety of flight in the crime of endangering public safety the first chapter, the main purpose of this article is to protect the safety of flight, then on the aircraft's personal rights.

Due to the specific crime belongs to the crime, therefore, to determine the specific content of legal crime, should not be beyond the range of similar to the law benefits. For example, the provisions of criminal law of theft, crime of insulting the corpse in the first section of sixth chapter of criminal law, the crime of disrupting public order, therefore, cannot exceed the criminal law, protect the legal benefit of this crime is that the personality, reputation.

(two) determine the content according to the provisions of the criminal law on the legal interests of specific crimes

The criminal law provisions on the specific provisions of the crime, or bright or dark, or directly or indirectly reveals its legal rights protected content, therefore, to the relationship between good according to criminal law of the crime as well as various provisions, determine the legal provisions of the molecules. Specifically, through the provisions of the criminal law on the protection of the interests of the law provision, the behavior characteristics of criminal law provisions, the characteristics, behavior characteristics, crime object for regulation, crime object, the crime infested for use in determining the properties of the legal content.

In determining the specific crime law, also be good at using a variety of methods, one is analysis of the relationship between the provisions, pay attention to the coordination of the criminal law.

The third section The objective elements of crime

Introduction, the objective elements of crime

Objective elements of a crime, the criminal law, the infringing acts on criminal law protection of legal interests, while the objective fact must have features of the crime; it shows that a crime is through what what behavior, the criminal law to protect the legal interests caused what consequences. Part of objective elements of a crime is the first harm the social behavior, harm behavior is the common element of all crimes, the establishment of any crime must have a harmful act in criminal law. In addition to harm behavior, causal relationship between the behavior object, harm, harm behavior and harm result, but also an important content of the objective aspects, but generally common elements are not all crime, constitutive elements of crime is certain.

Two, risk behavior

(a) the concept of harm behavior

Harmful acts, refers to endanger the society governs people's consciousness of physical activity. First of all, the harm behavior is the human body activities, including active and passive activities. Because the harm behavior is the human body activities, is the external phenomenon objectively, therefore, ideas are excluded from harm behavior, will be excluded. Speech itself is not a crime, but the speech is a kind of physical activity, and thus act. Secondly, the harm behavior is a product of dominant of human consciousness, or is the external manifestation of consciousness. Therefore, unconscious actions are excluded from harm behavior. Finally, the harm behavior must be violated or threatened legal behavior objectively, if the behavior is simply not possible infringement and threat of law, it is not dangerous act in criminal law. A behavior that is in imminent danger against profit in law, should all the objective facts exist in behavior based on the objective facts, and to a certain degree of abstraction (abstract method is to abandon the fact prevent results), and standing behavior position, in accordance with the principles of the objective law of causality judgement.

(two) manifestation of harm behavior

1, as

As, refers to the behavior of people in a positive physical activity to implement the harmful acts prohibited by law. From the perspective of expression form, as is the active body movements; from the nature of the violation of legal norms, as a direct violation of the prohibition of legal normalization. For example, torture to extract confessions behavior, must be active body movements, in direct violation of the criminal code prohibited torture to extract confessions.

2, not as

Omission, refers to the act to fulfil their obligations in the case of non performance of the obligations. From the perspective of expression form, not as a negative body movements; from the nature of the violation of legal rules on look, not as not only violates the prohibitive norm in criminal law, but also in direct violation of a rule of order. Such as the crime of abandonment is not to provide assistance in behavior, demonstrate that there is no dependency does not have the ability to live independently, the behavior not only violated the "criminal law" article261Prohibitive norms of the implementation, using others as etc..

The theory of criminal law in general will not as a crime is divided into two types: one is pure omission or really not as a crime, the criminal law by not only as a form of crime. The two is the omission or UOC, namely behavior with no as the formal implementation usually as a form of crime. Our country criminal law theory, the crime can be formed by many as, also may consist of omission. This case is not as committed, the offense of nontypical omission. For example, "criminal law" article416Provisions not to rescue the kidnapped, kidnapping of women and children crime, is pure not as crime. Moreover, the behavior person not as a way of intentionally causing death, is the offense of nontypical omission. The establishment of the crime of omission must satisfy the following conditions objectively:

(1) behavior has the legal properties of the implementation of specific obligations of positive behavior. This obligation is a requirement of the legal nature of the duty, on the other hand, is the content of the implementation of active behavior specific. Sources of such obligations are: first, legal, laws and regulations stipulate the obligation. China's "marriage law" provisions, the parents have the duty to bring up and educate their children, children have the duty to support and assist their parents. Therefore, refused to support, support behavior, may not constitute a crime as.

Second, office or business requirements of the business. By third, legal obligations. (contract, voluntary behavior may cause the behavior person has implemented positive act).

By fourth, previous act obligation. This is due to some behavior of the criminal law to protect the legitimate rights and interests is in danger, the behavior has the elimination of danger or specific positive duty to prevent the occurrence of harmful consequences. As adults with children swimming, has the protection of safety of life children obligation.

Previous behavior not including criminal acts, not lump together, we should distinguish between the two situations to discuss.

It is a crime, in criminal law provisions of the aggregated consequential offense, or because of serious results and the establishment of crime, the aggravated consequence assessment can be in the corresponding aggregated consequential offense or another crime, crime of previous does not lead to the actor has to prevent serious happen obligations.

Second, not a crime in criminal law provisions of the aggravated consequential offence, does not require some serious results and the establishment of other serious criminal cases, if the crime had led to another legal interest is in danger, it should be that the criminal behavior leads to the actor has to prevent another legal interests infringement duty.

For example, in violation of provisions of the forestry law, illegal logging of precious trees, trees fell head hit others, behavior person knows or ought to know that the don't immediately to save the lives of others will lead to death, but no relief. Illegal logging of precious trees is the "criminal law" article344The provisions of the crime, but the344And no offence provisions of the death, in other words, causing the death of behavior and death results cannot be evaluated in the illegal logging of precious trees in crime. In this case, should be illegal logging of precious trees crime, as a result the behavior has the obligation to rescue the previous behavior, so as the case is not considered as intentional homicide or negligence causing death, from illegal logging of precious trees crime punishment.

(2) actors can perform specific obligations. The actor is able to fulfill their obligations, should conduct its two aspects of subjective condition and objective condition to judge duty.

(3) the actor does not perform specific obligations, caused or may cause harm result.

Meet the above conditions, have not as the objective requisites of crime.

But the following points need attention: (1Not as a general) act in accordance with objective circumstances of a crime, crime is not directly, only when a is not as consistent with the specific constitution of crime to crime. Therefore, even if there is some kind of "Inaction", but does not meet the specific elements of crime, can not be regarded as crime.

(2Although) behavior caused damage results in the objective, but is not intentionally or negligently, but due to irresistible force caused by the act will cause damage, but because of the limitation of subjective and objective conditions, not be possible to eliminate or prevent results.

(three) the time, place and harmful behavior method

For the majority of crime, criminal law does not act at a specific time, place, according to the specific implementation method, in this sense, the common elements of time, place, method of behavior is not the crime. But there are three points to note: (1Some provisions explicitly request) behavior must be implemented in a specific way at a specific time, place or.

(2A civilization that will) some specific time, place, method, as a statutory type upgraded conditions or heavier punishment plot.

(3Even if the law does not expressly behavior) time, place, method regulation did not affect the conviction of the factors of rainfall, time, place and method of behavior will be the level of social harmfulness behavior itself, and thus become the discretionary circumstances of sentencing.

Three, the behavior object

The behavioral object (also known as the object of the crime is a crime in the role), the subject of law benefit or material performance. Such as the crime of intentional homicide, "person" in the crime of theft "private property" is the object of crime. The object of the crime in certain crimes are elements, only to a specific object, can constitute a crime. The crime object specific influence to distinguish this crime and other crimes in some crime.

(1), behavior object is different and the composition of crime. Such as, bribery is composed of bribery, bribery of things, but not that the object is the bribery, bribery; moreover, gambling is gambling crime objects, rather than gambling object.

(2), behavior object and behavior in the different. The behavior of breeding, is refers to the crime behavior of the resulting object. If the act of forging documents, made drugs, not the behavior of objects.

(3And the behavioral object) are used for criminal behavior is different. For the use of crime mainly refers to the criminal tools. For example, the use of counterfeit credit card fraud, forgery of credit card is not the object of action, but for use and criminal behavior.

(4) object and a criminal activity compensation has been taken is different. Behavior person after the murder is obtained from the hiring fee or articles, not the behavior object.

The relationship between the object and the object of the crime behavior more closely: the behavioral object reflects the criminal object, the object of the crime control act. According to the theory of criminal law theory, there are two obvious difference:

(1The behavioral object) is presented by the external characteristics of things, it cannot determine the nature of the crime; and the crime object is demonstrated by the inherent nature of behavior, and therefore decided to crime characteristics.

(2) specific behavior object only certain elements of crime; and the crime object is the common elements of all the crimes.

(3Not all) act in violation of any crime; and the crime object in all crimes have been infringed or threatened.

(4The behavior is not a crime) object classification basis, because the act of the same object does not mean that the nature of the crime and crime object is the same; the crime classification basis, because the object of crime means the criminal nature of the same same.

Four, harm result

(a) the concept of harm results

According to the theory of criminal law theory, harm result are specific infringement facts and danger harm behavior to the criminal law to protect the legal interests caused by. Such as homicide caused the death of another fact, theft behavior caused by loss of public or private property is a fact, harm result.

Property damage results depends on the harmful behavior. The results showed that the harm is the criminal law to protect the legal interests suffer fact characteristics of infringement, which is a reflection of social harm fact.

When the damage is the result of constitutive elements of crime, the social harmfulness of crime which play a decisive role; harm result and social harmfulness is not the same concept.

Harm results including hazard behavior has the harm fact, also including the danger caused by the harmful behavior against the interests of law. However, the dangerous nature of behavior itself, not harm result, but the behavioral attributes.

(two) the morphology and classification of crime

1, offenders and the dangerous criminal

According to the state of the results, crimes can be divided into offenders and the dangerous criminal. Offender refers to cause some law against the crime condition. To deprive a person of life, such as for the elements of the crime of intentional homicide is the offender; dangerous crime is based on the risk of damage to elements of crime. Dangerous crime can be further divided into concrete dangerous offense and abstract dangerous crime. (Abstract dangerous crime is not as dangerous as the constitutive element of crime. The concrete dangerous offense risk elements, need specific judgment; the abstract dangerous crime of dangerous not elements, and therefore does not require a specific judgment, are not allowed to.

2Crime, crime, results in aggregated consequential offense

The results have a certain time interval between the end result refers to the behavior and crime, behavior crime is no interval between the end of the place of act and crime. For example, the crime of intentional homicide is the result crime, crime of housebreaking is behavioral offense.

The aggravated consequential offence, or aggravated, refers to a law of criminal acts (basic crime), because of the serious results and aggravate the legal punishment of the. Intentional injury is the adaptation cases. The aggravated consequential offence has the following characteristics:

(1The implementation of the basic criminal behavior) behavior, but the cause of the aggravated consequence, the causal relationship between the basic crime and aggravated consequence. If the aggravated consequence is not due to the basic result of a criminal act, is not true of the aggravated consequential offence. Structure based on the aggregated consequential offense, aggravated offense is aggravated consequence crime caused by the basic object. For example, only the cause of death to deliberately hurt object, it belongs to the intentional injury. But stiff on behavior object scope cannot limit, characteristics and should pay attention to recognize the error and the basic crime. For example,AThis to hurtBError occurred while, but because understanding damageC, leadCDeath, also established the aggravated consequential offence.

(2) act with intent or negligence of the basic crime, at least negligent aggravated consequence.

First, from the criminal law, the perpetrator of the basic crime is generally held intentionally, but the fault of the basic crime, may also be aggregated consequential offense. Such as "criminal law. Article132Railway operational accident crime stipulation, behavior caused serious consequences to the basic behavior, behavior especially serious consequences are caused, at least the aggregated consequential offense. Secondly, there are at least negligent aggravated consequence (at least the possibility of prediction). Such as intentional injury, behavior is negligent to death only, if the intention is the crime of intentional homicide, rather than harm the aggregated consequential offense. Part of the aggravated consequential offence aggravated consequence can be negligence can be intentional, such as robbery causing serious injury, death, and belongs to the aggregated consequential offense, the perpetrator is negligent to serious injuries or death, either, also may be deliberately (but, does not exist to negligence, the basic crime and aggravated consequence to the result of a deliberate aggravated offense). This needs to be analyzed according to the relationship between the nature of the crime and the legal punishment, crime, correct conclusion.

(3The criminal had aggravated consequence) aggravated punishment. Aggravate the legal punishment, is compared with the basic crime legal punishment, namely the result aggravated crime legal punishment is higher than the basic crime legal punishment.

Because the criminal law of the aggregated consequential offense aggravated penalty provisions, the aggregated consequential offense can only recognize one crime, and according to the statutory penalty sentencing increase, but not to the number of crime.

3The crime, status crime, and continue to make

From the relationship between the occurrence and of the result of crime, crimes can be divided into crime, status crime and continue to make. That is a crime, is refers to the once the law against the crime at the same time, the end of the end, crime law will also destroy the situation. The crime of intentional homicide is so. Status crime, is refers to the once the law profit violation result, crime and the end, but the legal interests infringement continuing situation. Such as the crime of theft. Continue to make, is refers to the duration of legal interests, compliance is also sustained situation constitutes a crime. The crime of illegal detention is the adaptation cases.

(three) the harm result meaning

The harmful results as an important factor in the objective aspect of crime, has the vital significance.

1One of the criteria, to distinguish between crime and non crime. When the damage is the result of constitutive elements of crime, if the act does not cause harm to the legal, no crime, criminal negligence is so. But because the harm result not all the constitutive elements of the crime, so when the damage results not constitute harm results occur, whether will not affect the establishment of a crime. Such as robbery has no property, without causing casualties, still holds the robbery, but is ready, attempted or termination.

2One of the standards to distinguish the crime. Whether people distinguish both crime and attempted crime by what standard, to be sure, under normal circumstances, only the occurrence of the harmful consequences, it may set up the accomplishment of a crime. For example, in the crime of intentional homicide, without the occurrence of death results, can not be set up in intentional homicide crime.

3, one of the factors that affect the severity of the sentence. In all crime, harm result of sentencing has influence. Because the harm results reflect the fact that the phenomenon of social harmfulness, the penalty must be adapted, and the social harmfulness of crime so, harmful consequences or not, the severity of how, will inevitably affect the sentencing. Harm result influence on sentencing for the performance of three cases:

(1As a legal punishment according to the selected). (2) as statutory sentencing plot. Such as the discontinuation of a crime if no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment.

(3) as discretionary circumstances of sentencing. When the criminal law will not harm result provides upgraded to the statutory punishment conditions and legal sentencing circumstances, the harm result is the discretionary circumstances of sentencing.

 

Five, on the criminal law causality

(a) the concept of criminal law of causality

China's criminal law theory is generally believed that, the criminal law of causality, a relationship between is caused by harmful behavior and its results by. In the event of a harmful result, the judiciary should cause the harm results to determine who acts, and then further determine the behavior is in accordance with the constitution of crime, finally draw a conclusion whether crime. Research on causality, obviously not harm behavior and harm result of itself, but to study how to identify some harm result was caused by a harmful act.

(two) the characteristics of the criminal law of causality

Causality in criminal law and the philosophy of causality is unity, which is mainly manifested in: (1Objectivity). The causal relationship is a relationship between things and be caused by, the relationship itself is objective, independent of anyone's subjective will as the shift, there is no causal relationship, can only be judged according to the objective connection between things.

(2Have order). The changes in the objective things in motion, the general performance of reason in the former, result in, could not exist on the reason for the results.

(3) have relativity. A phenomenon is opposed to the reasons it was caused by the results, it is the phenomenon was caused by a result. So, in the identification of causal relationship, on the one hand are extracted from the innumerable causal chain behavior and results the object; on the other hand, but also to prevent the sever the connections between things.

(4) have regularity. Whether it is a causal relationship between criminal law and philosophy causality, are talking about the relationship between the cause and the effect caused by.

(5) has complexity. Philosophy speaks a result of a fruit, a fruit, a result of more fruit, Doyne do Huo, with different fruits, with fruit and other phenomena, also exists in the criminal law.

The causation in law and philosophy on the causal relationship between individuality and commonness, special and general relations, so the causality in criminal law is special: (1The specific range). The criminal law only cause harm result harm behavior is the reason.

(2Specific content). Causality in criminal law must be a specific development process. Such as fraud, must be due to fraud behavior, make the victims have realized the mistake, the mistake and punishment based on property and property loss.

(three) identified the causation in law

How to identify the causal relationship between criminal law, is the Chinese and foreign criminal law theory have argued for a long time, there are various kinds of theories. China's criminal law theory previously taken is inevitable causality, i.e. when the damage behavior contains harm result, and in accordance with the laws of the harm result, between harm behavior and harm result is necessary causality; only the causality, is on causality in criminal law. This doctrine, causality has the following characteristics: (1) as some reason behavior must have the harmful consequences is likely, that is the necessary precondition for the causal relationship between the behavior and harm result; the so-called a behavior has possibility harmful consequences really, refers to the behavior that harms exist objectively according to the result; if the act does not have the harm of objective according to result, the reason it is not a result, only the conditions.

(2With the real possibility of) also could not explain the causal relationships, only when a certain phenomenon has happened is the result of the possibility is consistent with the laws of cause a result, the causal relationship between the to determine a phenomenon and the results. If a phenomenon although there is possibility of the reality, but in a swell in the process, occasionally with another causal chain together, so that the other phenomenon is consistent with the laws of the results, then, a causal relationship between the results of previous no phenomenon of what happened.

(3The causal relationship is a causal relationship) only under certain conditions, can not be divorced from the specific conditions of the performance of the behavior of isolated were investigated, and should be linked to the specific conditions at the time of judgment.

Because of this theory leads to establishment of the scope of causality is too narrow, and later appeared in occasional causal relationship, the basic view is that, when the damage behavior itself does not contain harmful results according to, but in the course of its development, occasional intervention other factors, and the intervention of law caused the harm result, between behavior and harmful results in accidental causality, between factors and harm result is inevitable causal relationship. Relationship between causal relationship with the accidental causality is the causation in criminal law. The theory also considers the conditions and reasons, can not be separated absolutely, condition is relative to the according to the terms, conditions and are based on the reason, but in different classes and levels. From the importance, and according to the conditions of second compared to, is a minor,; but the necessity, conditions and bases are indispensable. Only according to the interaction and conditions, to produce results. Only based on no condition, the result will not happen, there would be no reason.

Recently, and the emergence of the long-term foreign trial practice conditions, namely when there is "not the former without the latter" between behavior and harmful results (conditions), the former is the reason for the latter. Conditions that: (1As a condition of behavior) must be a possibility of resulting action, otherwise can't admit that there are conditions. For example, a to B traveling by train, hope B train subversion and has led to the death. If so, a persuasion behavior is not B the conditions of death, because the behavior has not caused the possibility. (2) condition relations in the "results" is refers to the concrete, specific state, the specific scale and specific events occurred as the result of.

(3The relationship between an objective) conditions, whether the development and behavior of people expected with no conditions, does not affect the relationship between.

(4One of the results) behavior is occurring conditions can be identified conditions, is not the only condition is certain conditions; together lead to a result in a number of behavior, if the removal of a behavioral results will occur, the removal of all behavioral outcomes will not occur, then all the actions are the results of the causes.

(5) has nothing to do with the former "condition" after condition directly lead to result, and even if not before "conditions" also will occur when there is no causal relationship between the results, before the "conditions" and results.

(6) in the development process of causal relationship, if involved in acts of third parties or special natural facts, then, interrupt the causal relationship between behavior and result.

In general, causal relationship has lost its chief position, but the accidental causality and condition is the research still need what relationship problems. From the accidental causality theory point of view, the theory and conditions that no substantive difference. Whatever in theory, causality must pay attention to the following points: (1) causes causality just study whether a certain behavior as a result, which is the study of the relationship between the behavior and the result caused by, rather than on the behavior and results study itself; because the harm behavior has the legal punishment, so it cannot replace the cognizance of causation of dangerous behavior itself.

(2) causality is a kind of objective, independent of man's will, whether the actor realize his behavior may harm results, do not affect the identification of causality;

(3) a harm result completely may cause, by a number of harmful act accordingly, in that some action is a harmful result, can not easily deny other behavior is also the result of causes; conversely, a harmful behavior may cause a harm result. (4) in the behavior intervention of the victim's behavior and the resulting third or circumstances, to judge whether a result from the behavior caused, examine the behavior leads to the results of the possibility of occurrence of size.

For example, a homicidal intentionally to B violence, physical injuries caused b, B on the way to the hospital, was killed by a car. Due to the abnormal behaviors in the C, and C causes B death, there is no causal relationship between behavior and B a death.

Another example,AKill intentionally toBViolence, causeBSuffered a near death at.BAt the hospital, the doctorCThere is a slight negligence, fails to saveBLife. BecauseAThe dangerous acts lead to death as a result of large, but the case (slight negligence) on the occurrence of death the effect is small, so it should be identifiedAThe behavior andBWith a causal relationship between the death.

(four) the causal relationship of the nonfeasance crime

The causal relationship between the omission and the harm result, has always been a controversial issue.

(1), from the relationship between power and duty, if the obligation body fails to perform the obligations, rights can not enjoy rights, so that the law infringed. Not as it is because of the behavior has the specific obligations and not fulfilling the obligations, the legal relationship is destroyed, cause harm to the specific. (2), the relationship between as and the harm result in general: if you do not have this behavior, harm result will not occur, so the as is the reason. If the behavior of people to fulfill their obligations, harm result will not occur, so it does not fulfill the duty is the reason. And although this form is different from a causal link, but the content is the same.

(five) causality and criminal responsibility

The causality is not equal to the cognizance of criminal responsibility. The causal relationship between the identified certain behavior and some harmful results, just established the behavior caused certain harm result. On the one hand, the behavior and the result objectively is what, what kind of property in criminal law, it is not causality can solve the problem, need according to the criterion of behavior and the nature of the criminal law. On the other hand, should bear criminal responsibility depends not only on the objective facts, but also depend on the behavior of their own behavior and the result of the mental state; in a cause and effect relationship, people may not have the required intent and negligence in criminal law, and thus could not be investigated for criminal responsibility person. So, a causal relationship is not equal to have criminal responsibility.

In section fourth, the subject of crime

Introduction, the subject of crime

The crime subject of crime substantive criminal law and criminal liability of the person (including natural person and unit).

The concept of the subject of crime has two meanings: one refers to have implemented the provisions of the criminal law of the crime or criminal; two is the subject of crime conditions, which have the conditions to become the subject of crime, can bear the criminal responsibility. As an element of crime, is the study of the latter, namely the crime subject of crime.

Crime subject element is the implementation of crime itself must have the conditions, including the human nature (such as age, gender and social attributes (properties) identity, unit) conditions. Part of the provisions of the criminal law of the provisions of the conditions of special subject of crime.

According to the criminal law, the subject of crime into the criminal subject of natural person and unit crime subject.

Three,Criminal subject of natural person

The main elements of crime in general admission is: (1To the criminal legal age (;)2With the identification and control ability).

(3The special identity).

(a) criminal legal age

1The concept, the criminal legal age

The criminal legal age, refers to the provisions of the criminal law, the perpetrator's crime must reach the age. Is one of the criminal subject of natural person must have the conditions.

2, the provisions of the criminal legal age

Full14With the age of18A person under the age of crime, shall be given a lighter or mitigated punishment. This is the period of commutation of criminal responsibility.

3, criminal legal age

The criminal legal age shall be from the date of birth to the date of calculation instead of the date of. Because the act contains no result, the results did not include behavior. Crime is a behavior, identification and control ability, must be the "behavior" of the identification and control ability, then, criminal legal age must also be "behavior" age.

About cross criminal legal age crime, should pay attention to two things: (1Human behavior is full)16After years of age to carry out a certain crime, and in full14With the age of16During the implementation of the same age behavior. As for whether or not be investigated for criminal responsibility, it should be a concrete analysis. If you have full14With the age of16The implementation of the "criminal law" is the age period17Article2The specific criminal provisions, shall be investigated for criminal responsibility; otherwise, it can only be full16The criminal responsibility of the crime committed in later age.

(2) behavior in full14With the age of16Years old, the implementation of the "criminal law" article17Article2The specific criminal provisions, and under the age of14Old age has also implemented the same behavior, which can not be investigated for criminal responsibility, can only be full14Criminal responsibility age specific implementation of crime.

(two) the identification control

1The concept of control ability, identification

Identification and control ability, refers to the act of behavior recognition ability and control ability.

The ability to identify, is the ability to nature, results and significance of behavior people understand their own specific behavior; control ability, refers to the act governing their ability to implement or not to implement specific actions.

The ability to identify and control ability in close contact. The ability to identify is the basis and premise of control ability, no ability to recognize there is no ability to control. Control ability reflects the ability to recognize. Control indicates that the behavior person has the ability to recognize.

2,  Identify the types of control ability

The provisions of the criminal law and judicial practice, identification and control ability of human behavior can be classified as follows:

(1) complete identification and control ability, that all the crime stipulated in the criminal law has the identification and control ability. Full16Years of age and normal mental person, all has the complete identification and control ability, people.

(2) relative identification and control ability, certain serious crime is behavior person to the provisions of the criminal law has the identification and control ability. Full14With the age of16Years of age, is the relative identification and control ability, only to the intentional killing etc.8A crime criminal liability.

(3) part identification and control ability, refers to a kind of crime because of the lack of identification and control ability, lead to a form of mental disease, and has fully recognize the ability to control other crimes. Such as litigation mania of crime of false accusation without identification and control ability, but has the ability to control the other criminal identification.

(4) reduce the identification and control ability, the behavior of criminal identification and control ability, lower than normal because of age. Full14With the age of18Years old and mentally healthy people, to reduce the ability of control and identification of people.

(5) limit the identification and control ability, namely behavior due to mental disorders and identify the ability to control crime significantly reduced or reduce.

(6) without identification and control ability, that is behavior person to all the crimes are not the identification control. Includes two types: one is behavior person did not meet the criminal legal age, they are not legal identification identification and control ability; two is the behavior person although to criminal legal age, but because of mental illness and to all the crimes do not have identification and control ability. Usually said no identification control refers to the ability of A.

3Identification identification, control ability

In judging the person's identification and control ability, need to pay attention to the following questions: (1No) for identification and control ability, judgment, should be the standard of medical standards and psychology. Firstly, judging whether the perpetrator was suffering from mental illness, then judge whether as mentally ill and unable to recognize or control his own conduct. The former is composed of psychiatric medical experts, the latter by judicial personnel judgement.

(2Intermittent mental patient in crime) the spirit of the normal time, shall bear criminal responsibility.

(3) mental patient who has not completely lost the ability to recognize or control his own conduct crime, criminal responsibility shall be borne.

(4) an intoxicated person who commits a crime shall bear criminal responsibility. (5) deaf and dumb or blind the crime, he may be given a lighter, mitigated punishment or be exempted from punishment.

(three) special identity

The special identity refers to the special qualification behavior on the identity, as well as other relevant and some crime, conduct a special position in the social relations or state. If the female gender, kinship, national staff etc.. General conditions these special identity is not a natural person crime subject, crime is only natural person crime subject should have certain.

The special identity must be as people began to carry out the crime is special qualification has or has formed special status or the status, because of the special status crime was formed in the crime or criminal organizations (such as the ringleader) is not a special identity. Special status is the status or condition of behavior person special qualifications, in personal aspect, and has certain persistent, therefore, the special crime purpose and motivation, mental state, should not be included in the special identity. The special identity is always with some crime closely linked, and criminal behavior had no relation to the qualification conditions, not the special identity. For example, in from sin, nationality and whether there is a close contact with the state staff and crime, which belongs to the special identity; but in the crime of intentional homicide, nationality and whether the national staff and crimes are not closely linked, so it is not a special identity, depending on type of criminal law provisions and identity. The special status of both may be due to the formation of the law of identity, such as witness, the criminal detention in accordance with the law; also may be due to the fact that the formation and regulation of identity, for the old, young, sick or any other person who cannot live independently have the obligation of the people, has formed the natural identity based on kinship on the one hand, on the other hand, there are legal provisions legal identity based on.

According to the criminal law, special identity mainly include the following: (1The special identity) to a specific public content, such as the national staff, the judicial personnel, postal workers, tax authority staff (2The special status of occupation) in specific content, such as aviation, railway workers, medical personnel (3The special identity) to specific legal obligations, such as the taxpayer, withholding agent (4The special identity) to specific legal status as the content, such as witness, identification, record, translation.

(5The special identity) to possess certain items for content, equipped with guns for the discharge of official duties according to law.

(6The special identity) to participate in some activities, such as bidders, the promoters of the company.

(7The special identity) to have certain diseases as content, such as patients with serious venereal diseases.

(8To live and specific tissue) become the special status for content, underworld organizations such as overseas personnel.

Three, the subject of unit crime

The unit crime refers to a company, enterprise, institution, organization, group for the units to seek illegitimate interests, the collective units or decided by the responsible person, by the unit directly responsible implementation of crime.

In accordance with legal person qualification in China Foreign Company, enterprises, institutions, the implementation of harm the social behavior in China in the field, in line with China's criminal law constitutes a crime, shall be in accordance with the provisions of the unit crime in our criminal law shall be prosecuted for criminal responsibility.

The fifth section Subjective elements of crime

Overview, subjective elements of crime

Subjective elements of crime, refers to the criminal law provides for the establishment of the crime must have, the subject of crime on the actually harm behavior and harm result applied psychological attitude.

Here the "subjective ', reflects the dominant behavior external activities of the subjective consciousness. Crime belongs to the category of mental attitude, with the content of psychology; it consists of cognition factor and will factor, cognition factor and will factor directly reflect the behavior of human emotion attitude. Sin is a concept of law, a criminal law meaning: it is the subject of crime on the harm behavior and harm result their implementation of the mental attitude, which directly reflect the behavior people on criminal law protection of legal interests of the opposite attitude. The basic content of criminal psychological attitude is intentional and negligent (collectively known as sin), in addition, there are criminal intent and motive. And the objective elements of crime of sin: sin is closely related to harm behavior and harm result of intentional and negligent; sin must be shown in harmful behavior of sin is certain; behavior psychology, crime and the existence of fault form and content should be based on the behavior subject, but not before or after the act of behavior prevail. The general provisions of criminal law clearly stipulates the intentional and negligent meaning, the establishment of any crime is the subjective intent or negligence; not intentional and negligent behavior, impossible crime.

Two, the intentional crime

(a).

According to the "criminal law" article14Article1The provisions of paragraphs, the intentional crime, refers to knowing that their actions will cause socially dangerous consequences, and wishes or allows such results mental attitude. Intentional crime is composed of two factors: one is the understanding of the factors, knowing that the results; two is the will factor, namely the hope or indulge it happened. The organic unity of the two is the intentional crime: on the one hand, any crime must exist at the same time cognition factor and will factor; on the other hand, the internal relation between cognition factor and will factor, prominently, behavior person recognized results with the hope or laissez faire results must be the same, and will factors to understand factors as premise.

(two) intentionally species

According to the provisions of the criminal law, intentionally can be divided into direct and indirect intentional.

1, direct intention. Is knowing that their actions will have consequences to society, and hope that the mental attitude. Direct intent is the unity of cognition factor and will factor.

(1) direct intentional understanding factor is the result of knowing that one's actions will cause harm to society. First, the content and nature of the hazard behavior person knows his behavior. With the subjective malignant. Second, knowing that your behavior will have some harmful results. Only recognize the basic properties of the harm result. Knowing the results of hazards including harm result is inevitable and that harm results may occur in two cases; the behavior of human knowing is what kind of situation, should be based on the understanding of individual prevail, not to subject the objective facts. Knowing the harmful results show that people recognize that the causal relationship between behavior and harmful results of its own, but only requires the person recognizes the basic part of the causal relationship between, does not require a specific form of causal knowledge. Third, some of the crime of intentionally also requires people recognize that the particular facts of criminal law. Such as the crime of harboring a criminal.

(2), will direct the story happened to harm result. Hope refers to the behavior person to actively pursue the harmful consequences, harmful consequences is committing acts endangering the direct goal.

2, indirect intent. Is that your behavior may cause socially dangerous consequences, and let this happen mental attitude.

Indirect intentional understanding factor is basically the same, and direct the intentional understanding factor difference is: direct intent may be both knowing that their actions will inevitably harm result, may also be knowing that their actions may harm results, while the indirect intent can only be knowing that their actions may harm result. The volitive element of indirect intent is indulge harm result. Here the harm result is behavior person has knowingly harm result. Laissez faire is a allow someone to continue to harm result of attitude. That behavior in order to pursue certain purpose must be, knowing that the behavior may have some harmful results. Thus, the laissez faire is take the nature as the only has led to the possibility premise.

Indirect intentional crime occurred mainly in the following two conditions: one is the behavior of people in order to achieve some kind of non criminal intent and laissez faire harmful consequences,

Indirect intentional crime occurred mainly in the following two conditions: one is the behavior of people in order to achieve some kind of non criminal intent and laissez faire harmful consequences. If hunters to hit the beast and could hit others laissez faire attitude; two is the act of letting another results in order to achieve some kind of criminal intent and the occurrence, such as in order to looting and violence laissez faire victim death, or to his wife put poison in his bowl, let the child's death.

(three) intentionally and mistake of law

Mistake of law, with the intent to whether need to recognize the illegal behavior, are different sides of a question. Intention of the establishment of whether to ask the person recognizes his illegal, in foreign countries have different points of view.

In our country, intention of the establishment of illegal principle does not require the person recognizes behavior. First of all, when people recognize that their own implementation of the harm behavior, damage results, and wishes or allows such results occurs, reflects the positive behavior of violating the legal rights attitude; not only to recognize the illegal, in order to reflect this attitude. Secondly, law is the legal expression of social harmfulness, since the request the person recognizes acts harmful to society, there is no need to require the person recognizes the illegality; again, if not criminal law does not recognize the criminal responsibility of the intentional crime, is not conducive to encourage citizens learn, understand, also caused serious unfair phenomenon. In other words, if the intention of the establishment of the illegitimacy cognition is the premise, to understand the possibility of the establishment of intentional crime, not knowing the possibility of intentional crime, the law and order is not consistent. Finally, if the intention of the establishment of the law that the premise, then, the judicial organ hand according to the cognition and will of the harmful behavior and the behavior of people to distinguish between intentional and negligent, on the other hand, according to the knowledge of illegality to distinguish between intentional and negligent, when the two are in conflict, it is difficult to identify fault form.

Therefore, under normal circumstances, people recognize that their actions harm nature and harm result, and hope or indulge harm results, not because he claimed ignorance of the law, and the discharge of deliberate sin. However, under special circumstances, if the acts because of ignorance of the law but not cognitive behavior harm and harm result, are not tenable deliberately. There are two situations: first, because they do not know the existence of law and not understanding the harm of the action. Kill a sparrow.

Second, because of a misunderstanding of law and not understanding the harm of the action. Trust the judicial organs of misunderstanding. Also can not be intentional crime responsibility.

And illegal cognition related there are two conditions: one is the behavior of people mistakenly believe that their implementation is a crime, the behavior is not concurrent prohibited. This situation is called the illusion made. That the legal standard of crime is the criminal law of the crime, since a certain behavior is not criminal prohibitions, cannot because the behavior of people mistakenly think that crime and guilty. Two is not a correct understanding of the perpetrator of the crime in their implementation of charge, crime, penalty etc.. For example, the behavior person thought method insured defrauds insurance money by disability caused by the behavior only to set up the crime of insurance fraud, and the provisions of the Criminal Law Act established the insurance fraud and the crime of intentional injury. This error does not affect the intention of the establishment, also does not affect the sentencing, because the judicial organ according to the provisions of criminal cases only facts and define the crime, crime and punishment, rather than understanding the perpetrator of the crime, according to the number of crimes, sentencing, crime and punishment to determine charges.

(Four)Intent and the fact error.

Cognition errors of facts, refers to the understanding of human behavior is different from the objective fact. Mistake of fact is divided into specific understanding of the facts and abstract cognition errors of facts.

1,  Recognize the error specific facts

Recognize the error specific facts (concrete mistake of fact), refers to the act of understanding of the facts and the actual fact although inconsistent, but not beyond the scope of the same crime. That behavior is a crime in the scope which happened in the mistake of fact, which is also known as the same crime within the error. Concrete mistake of fact includes object error, strike error and causality errors.

1.    Object error

Object specific facts wrong in error, refers to the behavior of people who mistake a object as B objects to be infringed, and a and B shows the same object object of legal interest, cognition behavior recognition and objective fact still belong to the same crime situation. The desire to kill a person, but the night mistakenly killed B. The theory of criminal law in general to take statutory compliance with said: the provisions of the criminal law of the crime of intentional homicide is to protect human life, not only protect special armor or specific B life, therefore, if people in charge to kill people kill, and objectively, then meet the manslaughter elements, the establishment of intentional homicide accomplished.

(2To combat error)

Hit the wrong or the wrong way, refers to the behavior itself is wrong, cause the object behavior person to attack and the actual victims are not consistent, but this inconsistency is not beyond the same crime. For example, behavior person gun nail, but because there is no aim and hit the B, B death cause.

According to the statutory compliance with said, in such cases, behavior is a murderer intentionally subjectively, homicide behavior objectively also causing death, crime of intentional homicide crime stipulated in the criminal law of two which is completely consistent, so the establishment of intentional homicide crime. Generally, the behavior people established intentional homicide crime on a and B, but because there is only one behavior, it should be according to the imaginative joinder of offenses in a crime.

(3The causal relationship between error).

Causality error, refers to the violation object without error, but the cause of the development of the causal relationship between damage behavior and expected inconsistent, and against the results back or early occurrence. The causal relationship between the error mainly have three kinds of cases: namely narrow causality errors, prior intent and the constitution of crime accomplished ahead of time.

The causal relationship between narrow error, is refers to the result not process according to behavior of human development on the causal relationship between the predicted to realize the situation. For example, a murderer intentionally use a knife to kill the wounded B, B, but B for patients with hemophilia, died of excessive bleeding. To solve the wrong understanding of causality, the key is to on the causal relationship between the clear intention of the establishment of the required, is an understanding of what degree. In general, the causal relationship between the rows of understanding literati own behavior and the harm result, may be necessary, but at best only requires understanding the basic part, which only requires the person recognizes his act will entail harmful consequences to society is enough, the specific state and does not require the development of causality have a clear understanding of. Because the behavior of people on the causal relationship between the basic part of the understanding, can explain human behavior to protect the legal interests of the opposite independence; how to understand the state of development of causality, does not affect the behavior of people blame the possibility degree. Therefore, understanding errors specific genres of the perpetrator of the causal relationship between development, does not affect the establishment of intentional crime accomplishment. Since the behavior person has intentionally to achieve the same results, the reality of the results of the implementation of the behavior and the behavior also has a causal relationship, we must certainly act on the reality with intent, which was accomplished crime.

Ex ante deliberately, refers to the behavior of people mistakenly believe that the first behavior has caused the results for other purposes, the implementation of second behavior, is actually second behavior that leads to the expected results of the. On this occasion, the causal relationship between the behavior and result of dead did not interrupt, still should be a causal relationship between the behavior and the result must be first, and the reality of the result is consistent with the behavior of people to achieve results, it should be based on intentional crime accomplished crime.

The premise of constitution of crime, actually refers to advance the realization of the behavior expected results. To determine whether this behavior was accomplished crime, the key lies in the implementation of the first act of behavior, whether it has started to implement, if certain conclusion, should be regarded as the accomplished crime, if the negative conclusion, denied the accomplished crime.

2Abstract the fact error

Abstract the fact mistake (Abstract mistake of fact), refers to the facts and the reality person know fact, belong to different constitution of a crime; or, the behavior of human knowledge of the facts and what happened across the different constitution of crime, which is also known as the difference between the crime error. Abstract mistake of fact only object error and combat error two: the former refers to the behavior, people who mistake a object as B objects to be infringed, and a object and B object reflect different interests, different constitution of a crime. Combat error, refers to the behavior itself is wrong, cause the object to attack behavior and the actual inconsistency, and this inconsistency exceeded the same crime.

Abstract mistake of fact there are two types: one is the subjective and objective aspects of light weight, that is behavior person to a misdemeanor, felony objectively is the facts of the crime, the desire to destroy property he killed a man is so.

The two is the subjective weight and objective aspects of light, that behavior intended to commit a felony, misdemeanor criminal facts objectively is intended to kill, but killed the pet is so.

Generally, the error principle between different constitution of crime of intentionally excluded from the established or has only been attempted intentional crime.

In addition, in the case of attempted felony without punishment, if a felony and misdemeanor homogeneous, built a misdemeanor in coincidence within the limits of the accomplished offense. Objective behavior and the subjective unification, it should be regarded as crime of theft. Action will occupy others' property is mistaken and take forcible possession of lost property. Although the actors in the objective is the implementation of the theft, but the subjective only with intentional misappropriation, so in the range of larceny, subjective and objective and not unified, only identified as the crime of embezzlement, is consistent with the principle of unity of subjective and objective. Thus, in terms of abstract mistake of fact (in the case of attempted felony without penalty), should first of all from the objective fact misdemeanor subjective or misdemeanor starting, and then judge is wrong and the corresponding objective facts or subjective understanding, so as to draw a correct conclusion. If the subjective cognition is a misdemeanor and felony, the fact is, from the subjective understanding, to determine whether the objective fact, phase object and if so, is identified as a misdemeanor offense committed. However, if guilty of felony offense, attempted offense and felony misdemeanor heavy on the accomplished crime, shall be punished for a felony offense. For example, a deliberately to B shot, but because there is no aim in C minor injuries. In this regard, shall be deemed to be attempted murder, and could not be regarded as intentional injury crime.

(five) recognition of intention

The deliberate crime understanding and identification in addition to master the types and features, but also pay attention to the following points:

1To speak, the intentional crime and life in general sense of "intentional" phase difference. The intentional crime with a specific content of social harmfulness, specific performance of the harmful acts and their own implementation of the understanding and hope or laissez faire attitude, and life in general sense of "intention" is that the behavior people consciously implemented certain behavior. For example, carry out acts of self-defense when such is life in general sense of "intention", and deliberately not criminal law.

2The criminal intent, difference and pure understanding or purely objective.

The error of cognition factor and will factor of unity, therefore, neither will factors instead of intentionally, also cannot use cognitive factors instead of intentionally. "With the...... .Objective to "replace the crime intentionally, may be indirect intention in deliberately excluded outside with" recognize... ."Instead of intentional, negligence as may be deliberately. This is inappropriate.

3General provisions, to "knowingly" and specific provisions of the "knowingly" phase difference. The general provisions of criminal law provisions of deliberate crime understanding factors is "wise" his act will entail harmful consequences to society, "the specific content that" certain provisions of crime criminal law. These two kinds of "knowing" both connections and differences. The general "knowingly" deliberately general components, specific provisions of "knowing" is a deliberate specific elements; only in the specific provisions of "knowing", in order to produce general "knowingly"; but in the specific provisions of "knowing" is not equal to the general provisions of "knowing", but in the general provisions "knowing" premise.

4, to reasonable presumption and subjective distinction. The presumption is that based on objective facts derived human behavior psychology. The fact is the psychological state of human behavior according to the test, through the use of evidence to draw the conclusion that the difference between presumption and the conclusion of this means is simply a difference in degree. The judicial authorities can use the estimation method to prove that the actor has no intentional mental state, such as the presumptive behavior acceptable time, location, variety, quantity, price, whether that is the proceeds of crime. Of course, the presumption should be based on objective facts, which is different with the subjective; presumption should allow the defendant to present evidence to the contrary to overcome the presumption of the false in special circumstances; estimating method should only be "deliberately" have to use all the Qing, and unable to find evidence that, not entirely to the presumption instead of investigation and evidence collection.

 

Three, the negligence of crime

(a) the concept of negligence

According to the "criminal law" article15Article1Negligence clause, crime, refers to should have foreseen that his behavior may cause socially dangerous consequences, because negligence and unforeseen or have already foreseen but believe can avoid psychological state. Negligence and intentional were united under the concept of culpability, the two have in common: negligence and intentional is the unity of cognition factor and will element, the behavior of the protection of legal interests held back attitude. However, negligence and intentional and two different forms, the specific content of each factor and will factor recognize different fault, the subjective malignant is significantly less than the mean, so the provisions of the criminal law on the crime of intentional crime different from. First, negligent crime are harmful consequences for elements, and not all the requirements of intentional crime occurrence results. Secondly, the provisions of the criminal law "criminal negligence law, criminal responsibility shall be borne for", "intentional crime, shall bear criminal responsibility", which embodies the criminal law to punish intentional range as the principle, to the punishment of criminal negligence as a special spirit. Finally, the provisions of a deliberate crime are much more clear legal punishment of crime in criminal law.

(two) kinds of negligence

According to the provisions of the criminal law, can be divided into fault negligence negligence and over confidence.

1, negligence.

Careless negligence

The fault of negligence, refers to should have foreseen that his behavior may happen harm the social result, due to negligence, not foreseen, so that the results of psychological state. Negligence is an inadvertent negligence, namely behavior did not foresee own behavior may entail harmful consequences to society, from the view of judicial practice, judge whether the perpetrator of negligence, but to judge whether the actor should have foreseen that his behavior may occur if harm results, should be foreseen and unforeseen, that behavior is negligent. Therefore, identification of the key that negligence is the content determine the premise should be anticipated and should foresee.

Premise is foreseeable behavior one can foresee. Should foresee is a kind of obligation, the obligation includes not only the law, law, duty and business rules and regulations of the obligations, but also including the daily standard duty. Should the behavior person knowledge risk level and behavior itself and the behavior of the objective environment into consideration.

Should foresee is the content of the harmful results of legal. A negligent crime to harm results for elements, elements are by criminal law, therefore, the actor should foresee the result is not a general sense of the results, nor any harm result, harm result but the criminal law expressly.

2, overconfident negligence.

Overconfident negligence, refers to have foreseen that his behavior may cause socially dangerous consequences, but believe can avoid, so that the results of psychological state.

Overconfident negligence is the cognitive negligence. This is behavior person to want to harm result will not occur.

People can avoid mainly to overestimate their own subjective ability, or improper estimation of objective conditions exist to avoid harm result.

Overconfident negligence and indirect intention is similar. If the two were aware of the harm the possibility, not wish to harm results occur. But the two is not is obvious: indirect intention is to let the occurrence of harmful results, results accord with the behavior of the will of the people, and the fault of over confidence is to harm result does not occur, the result was contrary to the behavior of the will of the people; indirect intentional behavior is to realize other intention and behavior, subjective didn't consider whether can avoid the harm result, objective and there is no financial and avoid the occurrence of results measures, and overconfident negligence behavior is to implement its behavior, because can avoid the harmful consequences; from the law point of view, indirect intention is "knowing" harm results may occur however, overconfident negligence is "foresight" harm results may occur.

(three) determination of negligence

According to the "criminal law" article16Rule, behavior has caused damage results objectively, but it is not the intent or negligence, but because of reasons may be irresistible or unforeseeable causes, it is not a crime.

In the determination of negligence, shall be strictly distinguished with unexpected events. Unexpected events and negligence have similarities, which did not foresee the consequences of their actions, objectively also have the results, but the former is not able to foresee, should not anticipate, the latter is able to anticipate, should foresee, just negligence did not foresee. In this problem, should start from the analysis of behavior, according to objective environment risk degree, the act itself behavior and behavior of human knowledge level, determine the behavior one can foresee the result below the circumstance at that time, and do not stand in the position after the judgment; not because the serious result that human can foresee; not because of the implementation of human behavior is immoral or illegal behavior, it acts that people can foresee harmful result.

In determining the overconfident negligence, can not be regarded as reasonable trust believe can avoid. Not to follow the rules of conduct identified as acts of negligence of over confidence.

Supervisory negligence can be divided into two types: one is the lack of supervision by supervisors to the behavior of the narrow sense of supervisory negligence, two is due to the absence of establishing safety management system composed of fault management.

Four, the purpose and motive of crime

(a) the criminal purpose

Although do not have intentional and negligent behavior can not be the crime, but in some cases, with intentional behavior may also not crime, because the establishment of some crimes, in addition to the requirements of intentionally, also requires a specific purpose. Purpose of the crime, is refers to the criminal illegal interest, sinner by crime subjective pursuit of status or result. The behavior people further pursue illegal interests, state or result. As the criminal law stipulated the purpose of illegal possession, the purpose of making profit and so on. The purpose of the crime, is a more complicated, profound mental state than the direct intentional will factor. Its content is not necessarily harmful result sense. The objective significance:

1In some crime, is one of the standards to distinguish crime and non crime. The criminal known as the purpose of crime.

2In some crime, is one of the standard area of this crime and other crimes.

3Influence of sentencing. The criminal purpose is different, the subjective malignant is different, and the resulting differences in social harmfulness behavior, and then affect the sentencing.

(two) the motive for the crime

The motive for the crime, refers to the inner cause or ideological activities to stimulate, encourage crime behavior, it answers what psychological causes of behavior based on the implementation of crime. The motive for the crime is the role of a crime, the crime behavior is what meaning to the behavior of a person's mental state.

The motive for the crime should have two conditions: one is the behavior of internal needs and desires; two is the cause and external stimuli.

The motive for the crime is some criminal elements, in addition, the circumstances are serious, serious crime, criminal motivation affect the conviction. When the specific provisions of criminal law if the circumstances are serious, serious is the constitutive elements of the crime, in which the plot contains the motive for the crime, so motivation content may affect the conviction. Of course, the main effect of motivation impacts sentencing. The same crime motive is various, different motives can explain the subjective malignant is different, reflecting the difficulty of transforming criminals, it is necessary to consider the factors of sentencing.

 

 

 

 

 

The third chapter theory of punishment

The tenth chapter penalty

The criminal law stipulated crime and its legal consequences legal, but the penalty is the legal consequences of a crime. Correct understanding of criminal law is not only beneficial to the application and enforcement of penalties, but also conducive to the understanding of the crime, because the crime is suitable for punishment of behavior.

The first section     The concept of punishment

A penalty, and its characteristics

Our country's penalty, is the country in order to prevent criminal violations of national interests, social interests and civil law and regulations, the people's court according to the criminal legislation on the crime, established on the deprivation of pain on the basis of the most stringent sanctions.

The criminals bear the pain of deprivation, is the nature of punishment of penalty, is the essence of penalty. China has consistently follow the principle of combining punishment with education, do not take the penalty method which cruel, brutal to trample, torture crime. However, one of the most severe form of punishment as a negative evaluation of the crime in the country to criminals condemned, certainly has the body to criminals, the spirit of the property, the pain of deprivation, relative to other coercive measures, is the most intense pain. If the average value exceeds the limit of social view of social and humanitarian allowed, the penalty as a kind of things, even the criminals living treatment to more than the general level and desirable point masses, fundamental property which is deviated from the penalty, can not be tolerated by the country and the people.

What kind of country for the interests of the people and what kind of punishment, is the most important social and political content to penalty. The penalty is in the hands of the representative of the people of the people's democratic dictatorship state hands, safeguard national interests, social interests and the interests of the citizens of tools.

Punishment is legal punishment, the penalty is the penalty provisions. Not only that, the penalty is only by the judicial organs of the state, be strictly follow the law of the jurisdiction and procedure. This indicates that the object is applicable to criminal punishment and other forms of responsibility has a strict distinction, also indicates that the application in accordance with the procedures it is different from other forms of responsibility.

The purpose of penalty, in the prevention of crime.

In two, the penalty power and the

Close contact with the penalty concept is the concept of penalty. Penalty is the punishment to the crime person state power based on criminal behavior. The penalty power is part of national sovereignty and national sovereignty, its content is the national criminal law to punish offenders. The penalty power can be divided into general penalty power and individual right of punishment. The former refers to, as long as the crime, the state can in general, abstract meaning of criminal law to punish offenders on the power of punishment; the latter refers to, have specific crimes, the country can implement a punishment, the specific meaning of the individual penalty on the specific crime.

The right includes the right of punishment, sentencing, sentencing and punishment right right right.

(1), the penalty is the right of the national legislature creation in the criminal legislation of penalty right, this right in our country only by the National People's Congress and its Standing Committee exercise, its content mainly includes determining a penalty, penalty system, the number of prescribed penalty principle, method and system of execution of punishment and the punishment of the crime.

(2) for a sentence refers to the right of criminal prosecution of criminal acts of the right. This right in principle by the procuratorial organs to act, but the country will also be part of minor crime (tell just processing crime) for the punishment power given to the victim.

(3Sentencing right) is a decision of a people's Court of criminal penalty right. This right can be exercised by the people's Court on the basis of guilty, its content is to decide whether penalty, the penalty imposed.

(4) type penalty right is the special organ the people's court sentenced to criminal punishment into practical implementation of the right. According to the people's court execution of a legally effective judgment and ruling, the content is people's court has sentenced to punishment execution.

The power of punishment according to the actually justified under penalty of punishment, which answered the "pain" why can be as applicable, will also answer the penalty according to the. Application of punishment is "because there is no crime to crime and." Because of crime and penalty "," Evil is. "The idea of justice requirements (Retribution);" for no crime and penalty "," embodiment of crime prevention "high concept (objective punishment). Therefore, the realization of social justice, the protection of law against crime, is the penalty according to (and end).

The relationship between three, punishment and other legal sanctions

A country's legal sanctions system, usually consisting of a variety of sanctions, such as in addition to punishment, and civil sanctions, administrative sanctions, economic sanctions. There is obvious difference between punishment and other legal sanctions.

First of all, of different severity. The penalty is one of the most severe legal sanctions, it can not only property rights and political rights deprives the crime person, can also restrict or period, no period to the offender deprived of personal freedom, and even can deprive criminals of life. And other legal measures absolute exclusion of life of deprivation, generally do not involve illegal people freedom of the person, even if is the deprivation of personal liberty (such as administrative detention), time is very short.

Secondly, different applicable objects. The penalty is only for criminal offense constitutes a crime of people. And other legal sanctions mainly applies to only general illegal behavior but did not constitute a crime, but also can be applied to the crime person under certain conditions (in the person of the crime to be punished at the same time, also can give other legal sanctions)

Again, for the different organs. The penalty can only apply to the people's court. While civil sanctions by the judicial organs of the state in the civil trial suitable department, administrative sanctions generally by the administrative law enforcement departments apply, and so on.

Next, apply according to different. Only by the people's court according to the punishment of criminal law and criminal procedure law, and other legal sanctions are in accordance with the civil law and civil law, administrative law and administrative litigation law and other laws, regulations shall apply.

Finally, the establishment of the different organs. Punishment can only be determined by the National People's Congress and its Standing Committee, and other legal sanctions may be established by other relevant organs. If administrative regulations may establish administrative punishments except the restriction of personal freedom, local regulations may establish administrative punishments except the restriction of personal freedom, the revocation of the business license, but the administrative regulations and local regulations making organs cannot provisions of punishment.

 

The second section     The purpose of penalty

The concept, the purpose of punishment

The purpose of penalty, is refers to the country develop, apply, the execution of the penalty purpose, also very national criminal legislation adopted penalty as a compulsory measures against crime phenomenon and execution and which is expected to achieve the effect of. This effect is not legislation, trial, execution of three links one or two can be achieved, only the three together, can be achieved.

Determine or restrict the other all the problem of penalty penalty goal, is the crucial penalty theory.

(1The purpose of penalty) restricts penalty punishment according to different purposes, different: as the penalty according to the facts will;

(2The purpose of penalty) restrict the scope of punishment under subject: the purpose of penalty, subject to penalty will be different;

(3The purpose of penalty) restricts penalty system and the penalty purpose different types: type of criminal law system, and will be different;

(4The purpose of penalty formulation) in relation to the penalty applicable principles: the penalty for different purposes, principles and standards of sentencing will be different;

(5The purpose of penalty) in relation to the execution of punishment: the purpose of punishment is different, will be the implementation of system and implementation method of criminal law is different.

Two, the purpose of punishment content

Through the establishment, application and enforcement of penalties, the impact on the ordinary people the offender and the surrounding, so as to achieve the prevention crime results, is a kind of social mentality in the common historical fact. Crime prevention, behoove becomes our country penalty. "Criminal law" article2A penalty function lies in the "struggle" against all criminal acts, directly provides the legal basis for the purpose of penalties. The penalty is the legal consequences of crime, criminal means to deal with, so that the purpose of punishment is to prevent crime.

The purpose of the crime prevention also includes special prevention and general prevention.

Special prevention, refers to prevent crime again. Obviously, the object of special prevention has committed a crime. Intentional crime, they often because the crime has been a material, physical, spiritual satisfaction, if not its special prevention, they may be in order to obtain a satisfied and crime. On the crime of people, they often because of slack, relax to own request behavior carefully, if not to the special prevention, they may also commit crime again. In other words, any criminal act that the actor has dangerous intention hostility, contempt, ignore or neglect the loss of interests, the realistic possibility indicates that crime again endanger the society, the need for special prevention.

Special prevention is realized by two ways: one is through the application of extremely serious crimes of criminal penalty, forever deprived of his ability to re crime. Two is the criminal punishment, the criminal not crime, not crime and not crime.

These methods also has a deterrent effect on crime and education reform, forcing them to realize that, if the crime will bear deprived of pain, only no longer crime can enjoy would have to have a law, and then, they dare not to recommit the same error, not the reoccurrence of jail, so as to achieve the purpose of special prevention.

General prevention, refers to the implementation of crime prevention has not criminals. The object of general prevention is not a crime, but crime members of society. Mainly includes: (1Crime is a dangerous person). Such as have not yet been released effective transformation, repeated violations of the people, repeatedly punished people. These people is the focus of general prevention.

(2Easy to the crime person). This mainly refers to the lack of legal concept, self-control ability is not strong, there is no fixed occupation, subject to criminal or easily crime abetting to people. (3) crime victims, directly or indirectly, by criminal violations of people. Although these people are victims of crime, but because often vindictive tendency, also easily by means of crime to revenge purpose, object belongs to the general prevention.

General way of prevention, one is the criminal punishment, declares to members of the community: anyone who commits a crime will be subject to penalty punishment, to bear the pain of deprivation, so members of society to alert and inhibition of the social members, dare not or unwilling to commit crime. Two is the criminal penalty, announce to the society members: any crime is violating the legal rights, the fight against crime is the social obligations of members, called for members of society to prevent and resist the crime, in order to prevent possible criminals to commit a crime.

The special prevention and general prevention is a whole, closely, inseparable. Any criminal violations of law, all indicates the offender is a real possibility again crime; at the same time that the reason of our country has induced by various crimes and the crime of possible implementation. Through the development, application and execution of criminal punishments, prevent crime crime have again, is to protect the legal interest the most practical, the most urgent task; through the development, application and enforcement of penalties, warning education society, other people and resist others to commit a crime, is a nip in the bud, ensure social long period of stability strategy. Therefore, the necessity and special prevention and general prevention, is self-evident. From a realistic point of view, development, application and prevention of penalty, have special prevention of crime and to other human society from two aspects of the purpose of general prevention. Realizing special prevention, conducive to the realization of general prevention prevention; similarly, implementation, implementation is also helpful to the special prevention.

The third section The penalty function

 

 

A concept, penalty function

China's criminal law is intended to prevent crime, however, is not as long as once made, application and enforcement of penalties, can come very naturally to achieve the purpose of crime prevention; the penalty from making, applicable, execution to achieve the purpose of crime prevention, the middle also play this important part of criminal penalty function.

The penalty function is refers to the country develop, apply, enforcement of social effect directly as penalty, deterrent function, to appease the compensation function, role function of education. These social effects can be divided into two aspects: one is the effect of criminals, the two is the effect on other members of society. The purpose of penalty officially through the social effects of the two aspects of the realization of. Does not take into account the social effect of criminal punishment, or go beyond its own can produce social effects limit, the purpose of criminal law will become castles in the air, unable to realize. So, any penalty goal, must take the penalty function as a mediator for the establishment of the premise and the realization of the.

Two, the content of penalty function

The penalty includes special prevention and general prevention, special prevention is the object the offender, object of general prevention is the crime person outside of a class. These two kinds of different objects with the facts of the crime, the legal status of each different, so, countries expect punishment effect on what they have be quite different. The former is the crime, generally speaking, criminal law on their influence should be compulsory physical and psychological effects of both; the latter is not a crime, the criminal law effect on them, can only be limited to the psychological effect. That is to say, for realizing special prevention and general prevention penalty function, is the difference between.

(a) depends on realizing special prevention of penalty function

1, limit, eliminate recidivism condition function. Through the penalty, from the external constraints, eliminate the crime condition, so that never again or not in a certain period of time again, is the penalty realize special prevention must be the most urgent, the most important, most at least function. Specific performance in the legislative and judicial aspects, is the harm degree and the perpetrator of criminal personal danger degree, is the most effective penalty. The general is to restrict it may make the condition, such as personal liberty restrictions (in prison, detention, Guan Zhi), material conditions (fines, confiscation of property), political constraints (deprivation of political rights); especially serious for individual and social risk and personal risk for recidivism possibility, also greatly made sinners, may also eliminate the crime condition forever, which is according to the application of the death penalty, deprivation of life.

2, individual deterrence function. This function is through the perpetrators of deprivation, restriction to play. The fixed attribute of penalty, the crime is from their own rights and interests deprivation, restriction, feel some pain. The penalty of deprivation of pain, only to make the crime criminal law human justice and serious, no escape and understanding the most deserved penalty, thus to accept education and reform, the future did not dare to defy the law, heavy pain treatment. So, beyond individual deterrence to torture and severe punishment, is not due; or the prisons and reform through labor institutions do not become take criminal mental pressure universal education position, this will also hinder the play of specific penalty deterrent function, unfavorable to the special prevention, so it is not proper.

3The influence function, education. Through the development, application and execution of penalty, the criminal education from the trial process, including education, the implementation process of the education and so on, so as to restore the moral awakening consciousness, develop good, ideological roots to eradicate crime, to establish a correct outlook on life and values, consciously put themselves into again support oneself, law-abiding, new.

The above three aspects, is closely related to. Limit, eliminate the behavior of people make the condition of the measure itself, such as the deprivation of liberty, deprivation of property, deprivation of political rights, namely individual deterrence power and make them accept the re education of the premise. Attention must be paid to give full play to the three aspects of the penalty function, step by step, to obtain the best results: inmates by cannot afford, to not make, to not make again. Satisfactory results which makes the special prevention.

(two) for the implementation of general prevention penalty function

1In general, the deterrent function. The State formulates criminal law with the promulgation of the crime, the reality of the statement of relationship, and was confirmed by the judicial organ, declared to have criminal mind of people, who dare to defy the law, who will reap what one has sown, make yourself fall in the painful situation, forcing them to be not in the drive benefit to avoid kill mentality dominated, weigh gain and loss, give up the criminal mind, avoid walking on the road of crime.

2The function of legal education. A nation's crime rate, always weak legal concept with the citizens and legal culture is closely related to the degree of. Our citizens, because of lack of legal concept and the lack of legal knowledge. What is the right guide public crime, harmful to society what is proper behavior is beneficial to society, in order to be able to make sensible choices in behavior, it is indispensable to realize penalty general prevention.

3, comfort, compensation function. Comfort, comfort is refers to the victims and their relatives have been traumatized by the crime and the cause of resentment, quell the uproar, the crime of disrupting the social mentality by the restoration of balance; compensation, it refers to compensate for the loss of material. Play comfort and compensation function of penalty, is the penalty of social effect of general prevention are essential.

4Strengthening the awareness function, specification. Rely on social force, integrated management of multiple channels, is the important measures of crime prevention. The penalty will be through the application itself, making and execution, promote healthy atmosphere, embodies the justice of the law; wake up and strengthening national trust on law and order and maintain, enhance standardized national awareness; to encourage, support the majority of law-abiding citizens the maintenance of law and order, the protection of legal interests, so as to realize the general prevention.

The realization of the four functions for general prevention of close contact, forming a whole. General deterrence function in a dangerous criminal idea as the main object; the function of legal education to unstable molecules lack of legal conception as the main object; calm, compensation to criminal victims and their relatives as the main object; strengthen the consciousness to the law-abiding citizens as the object. Thus, these functions can prevent potential criminals to commit a crime, but also guide the law-abiding citizens to actively prevent others to commit a crime.

 

The eleventh chapter system of punishment

The penalty system, refers to the national criminal legislation to have the positive function, giving full play to the realization of the purpose of penalty is the guiding principle, choice, sequence sentence classified according to its severity lined.

According to the provisions of the criminal law, punishments are divided into principal and supplementary punishments, the principal and supplementary punishments are respectively according to severity from mild to severe arrangement. (the principal punishment, basic punishment, Dan Duxing), refers to the penalty method can only be applied independently, including control, criminal detention, fixed-term imprisonment and death penalty. Principal can only be applied independently, can not be attached to the application; a crime can only be applicable to a punishment, punishment can not be more than two at the same time. Additional punishment (penalty), refers to the penalty method applicable supplementary punishment, including fines, deprivation of political rights, and confiscation of property and deportation. Supplementary punishments can be attached to the principal penalty applicable, also can be applied independently. In addition, the penalty also provides non punishment method.

The first section Principal punishment

A, control

Regulation is not held on criminals, but limit the free punishment by public security organs, method of execution and supervision of mass transformation. A light punishment regulation is unique in China, which is characterized by the following contents.

One is not held not the offender deprived of personal freedom. Open this not the deprivation of liberty and execution, can avoid the inherent disadvantages of short-term punishment against freedom.

Two is a certain restrictions on freedom of criminals, so control is different from the exemption from punishment.

Three is a certain period, which shall not be unrestricted control to the crime person. The term of control for3More than a month2The following year, the combined punishment for several crimes shall not exceed3Years. Regulation is calculated from the date of the judgment sentence; sentence before execution in custody, custody1Daily allowance2Day.

The four is executed by the public security organs and the masses supervision reform. Submit to supervision, actually refers to the supervision by the masses. Visible control is the creative product of the specialized organizations and the masses of the judicial route combining practical experience.

Three, criminal detention

Criminal detention is short-term depriving the criminal free, nearby the penalty method of labor.

First of all, the detention is deprived of freedom penalty method. Because the criminal offender deprived of freedom, so has the obvious difference with control. The detention is the penalty methods, so it is with the administrative detention, criminal detention, judicial detention are obvious differences in the legal attributes, applicable objects, organs, basis, procedure, application deadline.

Secondly, criminal detention is short-term deprivation of freedom penalty method. The period of detention1More than a month6The following month, punishment shall not exceed1Years, the detention of short-term freedom penalty. The execution of the judgment before detention, detention1Daily allowance1Day.

Finally, the detention penalty method performs near by the public security organs. Criminal detention is by the public security organ at the nearest detention, detention or other regulatory sites for performing; during execution, the inmates may go home for one to two days each month; to participate in the work, can consider to return.

Four, are to be sentenced to

In prison is depriving the criminal of certain period of the free, the penalty method of forced labor transformation. In prison in China is the most widely used method of punishment, is be worthy of the name of the principal punishments. Its characteristics are as follows:

First, are to be sentenced to deprivation of liberty of crime. Mainly in criminal detention in prison or other executing place.

Secondly, in prison with a certain period of time. In prison for a period of6More than a month15Years of combined punishment for several crimes shall not exceed the following20Years; sentence Oh to decision date, before the judgment in custody, custody1Daily allowance1Day. Connect with lower limit and upper limit of detention in prison, the prison and detention phase difference. It is because of prison is greatly limit, so can be applied from light to heavy crime, and the criminal law of the crime legal punishment, are in prison; it is because of the punishment in prison is to a certain extent, so it can adapt to various criminal social the harmfulness of the change, so all over the judiciary can judge in the criminal to prison. If not in the legal punishment of fixed-term further provisions on limits, will lead to the discretion of the judge is too large, so the sentencing imbalance. Therefore, the criminal law provides for the prison punishment. Specific performance for the following situations:

1Years of the following,2Years of the following,3Years of the following,1Years or above7Years of the following,2Years or above5Years of the following,2Years or above7Years of the following,3Years or above7Years of the following,3Years or above10Years of the following,5Years or above10Years of the following,7Years or above10Years of the following,5Years or above,7Years or above,10Years or above,15Years.

Third, the basic content in prison is a labor reform of criminals. Our life is different from the criminal law in some western countries, only the offender deprived of freedom punishment of imprisonment.

Four, life imprisonment

Life imprisonment is depriving the criminal life free, the penalty method of forced labor transformation. Its characteristics are as follows;

First, life imprisonment is the most severe penalty free punishment, mainly in depriving the criminal of lifelong personal freedom. The criminal law of very serious crime is life imprisonment, prescribed mainly two types: one is for the provisions of the death penalty crime, generally at the same time, life imprisonment for the selection of penalty provisions.

The two is to life imprisonment for maximum statutory penalty provisions. In this case, at the same time will be longer in prison for the selection of penalty provisions. But because the law also stipulated the commutation and parole, amnesty system, etc., in fact, was sentenced to life imprisonment of offenders have little life sentence.

Second, the basic content of life imprisonment is the reform through labour to the crime person.

Third, life imprisonment can not be isolated, which for a criminal element sentenced to life imprisonment, should additional deprivation of political rights for life. This also from a side note the harsh life imprisonment.

Life imprisonment is the severe penalty method after the death penalty, but on the other hand, used instead of the death penalty play a positive role, in fact to should be sentenced to death for the crime person provides remove the evil and follow the good opportunity. A considerable number of sentence prisoners to life imprisonment, also illustrates this point.

Five, the death penalty

(a) the concept of the death penalty

Death is the penalty method to deprive criminals of life, including the immediate execution and suspended for two years for the implementation of two. Because of the death penalty is deprivation of life, so it is called life penalty; as with the most precious life, deprived impossible to restore the value of death penalty method, is the most severe penalty system, so it is called.

On the abolition of the death penalty, in the world scope has been debated for more than 200 years. On the one hand, to retain the death penalty does not mean that can kill, kill the wrong. A lot of the death penalty would cause the malignant crime increased, hinder the values of the upgrade. Application of the criminal law general provisions and the specific provisions for the death penalty made strictly limited. On the other hand, the abolition of the death penalty is a kind of trend, the problem is simply that when the abolition of the death penalty.

(two) the application of the death penalty

The criminal law of our country to carry out the death penalty, adhere to the less kill, prevent kill the wrong policy, the application of the death penalty must also be in this policy guidance. In the application of the death penalty should pay attention to the following points:

1, must strictly abide by the principle of legality, only to the specific provisions explicitly stipulated the death penalty of the crime, may be sentenced to death.

2The death penalty, should grasp the spirit of. Although only the provisions of the death penalty sentenced to death for the crime of criminal law, but by no means to the provisions of the death penalty of the crime should be sentenced to death.

(1From the specific provisions). First, the criminal law of the crime may be sentenced to death and more specific circumstances, it is not against the death penalty act must be sentenced to death. Only the "theft of financial institutions, if the amount is especially huge" or "theft of precious cultural relics, if the circumstances are serious", may be sentenced to death; and from time to time to any amount is particularly huge, if the circumstances are especially serious theft can be sentenced to death. The most serious circumstances of the death penalty is extremely serious crime linked, so even if is extremely serious crime does not mean that must be sentenced to death. Second, in addition to individual provisions, the death penalty is life imprisonment penalty methods constitute a sentencing range, so even if is extremely serious crime most serious circumstances, is not absolutely must be sentenced to death. For example, even if is especially serious harms to the country and the people, if the circumstances are especially bad fission country crime, only "may be sentenced to death", not be sentenced to death.

(2) from the general provisions, the first, "criminal law" article48Stipulates "the death penalty criminals in the most serious offense". Second, the general provisions of the death sentence with a reprieve system.

3When the crime, not anger18Years of any trial when the death penalty for pregnant women.

4The application of the death penalty, shall not violate the statutory procedures. A death penalty case only by the above intermediate people's Court of first instance, the grassroots people's court shall not be sentenced the accused to death. The death penalty except sentenced according to law by the Supreme People's court, should be submitted to the approval of the Supreme People's court.

5Shall not be arbitrary, using methods of execution. Death by shooting or injection method.

(three) the death sentence with a reprieve.

Who should be sentenced to death, if immediate execution is not required, may be announced at the same time with two years reprieve sentenced to death. This is the death sentence with a reprieve system, referred to as the death sentence with a reprieve. Kinds of punishment reprieve is not independent, but the death penalty system.

According to the above provisions, declaring the sentence must have two conditions: one is "should be sentenced to death", namely the severity according to the provisions of the criminal law of the crime, should be sentenced to death. This is a prerequisite for declaration of death.

The two is "not be executed immediately", according to the specific circumstances of the case, may not be the immediate execution of death penalty. According to the criminal trial experience, should be executed, but one of the following circumstances, can be regarded as "not be executed immediately after the surrender, meritorious service"; the crime or other statutory any mitigating circumstances; the crime is not the most serious or other in the same or similar cases of crimes is not the most serious in the common crime due to the fault of the defendant; the victim of crime or other crime indignant that easy to retrofit the plot; a pitiful circumstances; other circumstances should leave adequate leeway.

The reprieve from time to time independent kind of punishment, the convicted to death slowly will appear after the different outcome. For the criminals sentenced to death, there are three kinds of treatment outcome.

(1) in execution period, if not intentional crime,2Years after, to life imprisonment.

(2) in execution period, if there are major meritorious services,2Years after, reduced to15Years or above20Years in prison. (3) in execution period, if deliberately women sin, verification, approval by the Supreme People's court, execution. Here only to show that the criminal crime, resist reform, aggravated crime, rather than to any intentional crime. During the suspension of execution of death penalty implementation of minor crimes should be punished according to the criminal law, the "Regulations", and the new judgment is determined from the date of recalculation during the death sentence with a reprieve.

Suspended sentences identified before detention time, do not calculate in a2Within years, because the provisions2The test period is to observe the criminals in this2Years have no repentance, if the previous detention time count, lost the significance. The prison term from the death sentence with a reprieve expires date, rather than from the order date.

 

The second section Additional punishment

A fine

The fine people's court sentenced criminals to pay the penalty of a certain amount of money to the country. A fine belongs to the property punishment, punishment, it has a strict distinction between the nature of the applicable objects, procedures, applicable subject, basis, and administrative fines, damages and other penalties.

Applicable objects fine is to destroy the order of socialist market crime, crimes against property, hinder the social management order crime, the crime of corruption and bribery. Criminal law provisions on penalties in four ways: (1) selected fine. That is fine as a parallel with the principal penalty punishment, the people's court according to the specific circumstances of crime of choice.

(2Single penalty), which can only be fined, but not to other punishment. (3) and shall also be fined. The principal penalty and additional applicable penalty sentenced to. (4) or be fined, the people's court sentenced to punishment at the same time can be attached to the application of fine, also can only apply fine.

According to the circumstances of the crime is decided according to the amount of the fine, is mainly composed of the principles of crime compatible decision. The fine as the legal consequences of crime, and the social harmfulness of crime and dangerousness of the criminal suit, and the social harmfulness of crime and dangerousness of the criminal is determined by all the circumstances of the crime. The criminal law penalties for rules is divided into three types: one is not a specific amount, decided by the discretion of a judge. The two provides a determination of the amount of. The three is related to the illegal income or the amount of crime as a benchmark, a certain percentage or multiple fine.

Fine within the period specified in the judgment shall be legally effective judgment (second, the longest period of not more than3Months) once or in installments. If no pay, forced to pay. Can not pay the fine in full, the people's court once found the person subjected to execution has the property, which shall at any time. Really have no property available for enforcement, can be reduced or exempted according to the circumstances.

Two, deprivation of political rights.

(a) the concept of deprivation of political rights

Deprivation of political rights, is the penalty method that deprives the crime people participate in the management of state and political rights. Deprivation of political rights is deprivation of the following rights: one is the right to vote and stand for election; two is the speech, publication, assembly, association, parade, demonstration of the right to freedom; three, rights of the position in state organs; four is a State-Owned Company, enterprise, institution or people's organization right. At the same time deprived of these four rights.

(two) the applicable object of deprivation of political rights.

Applicable object of deprivation of political rights is widely used, is suitable for serious crimes, is also suitable for minor criminal; is suitable not only for the crime of endangering national security, also suitable for ordinary crimes. In the application form, deprived of political rights can be attached to the application, but also can be applied independently.

1Additional, deprived of political rights for serious crimes by criminal law, general provisions. Concrete is divided into two types:

(1) should be of additional deprivation of political rights. The following two kinds of crime should be of additional deprivation of political rights: first, for the crime of endangering national security shall be of additional deprivation of political rights. This is defined for the object of deprivation of political rights from the nature of the crime, so regardless of the sentence in the principal species. Second, to be sentenced to death, life imprisonment of criminals, should additional deprivation of political rights for life.. This is defined for the object of deprivation of political rights from the main types, so regardless of the nature of the crime and type.

(2) can be of additional deprivation of political rights. Whether additional deprivation of political rights, by the people's court specific discretion. For the criminals of intentional homicide, rape, arson, explosion, poisoning, robbery and other serious damage to social order, can be of additional deprivation of political rights; the intentional damage, theft and other seriously undermine public order crime, crime subjective malignant is deep, the circumstances of the crime, the crime of serious bad, also can be of additional deprivation of political rights.

2, deprived of political rights for a crime or crimes in independent crime matter lighter serious but the lesser crime, by the specific provisions of criminal law.

(three) the term of deprivation of political rights and enforcement

The term of deprivation of political rights is divided into the following four situations: (1The criminals sentenced to death), life imprisonment shall be deprived of political rights for life. (2) in the suspension of execution of death penalty commuted to imprisonment or life imprisonment is commuted to a prison, additional deprivation of political rights shall be changed to the deadline3Years or above10Years of the following. (3) applied in an independent or sentenced to criminal detention, additional application of the term of deprivation of political rights, as1Years or above5Years of the following. (4The term) and control to control the additional deprivation of political rights shall be.

The sentence initial and execution of deprivation of political rights is divided into three types: (1) is sentenced to control additional deprivation of political rights in prison, and control of the sentence at the same time, at the same time the execution date. (2Where deprivation of political rights), according to the general principles for the execution of the judgment, calculation is performed from the date of execution. (3) sentenced to deprivation of political rights, criminal detention term, and death sentence with a reprieve, life imprisonment sentence of deprivation of political rights in prison, prison, detention is executed from within or from the parole date; deprivation of political rights shall of course applied during the execution of punishment. For this type of crime, in prison, criminal detention, of course, deprivation of political rights. (4) sentenced to death, life imprisonment and deprived of political rights for life, from the date of execution of punishment has been the implementation of deprivation of political rights.

Three, the confiscation of property

Confiscation of property is all property crimes one or all compulsory criminal law method free nationalized. Confiscation of property and confiscation articles with different nature. Confiscation of property is in fact the confiscation of criminal legal and not for crime of property; not to recover the proceeds of crime, confiscation of contraband and crime's own property used to replace or allowance to confiscation of property.

Confiscation of property is only applicable to criminal law expressly provides that a crime may be sentenced to confiscation of property, from the criminal law point of view, mainly is suitable for the more serious crime.

Confiscation of property in whole or in part, according to the social harmfulness of crime and dangerousness of the criminal determination. Family members should all or property, shall not be confiscated. This is conducive to maintaining social order and stability, through the principle of culpability.

Legitimate debts before the property was confiscated criminals are negative, that is committed to others legal debt sinners have negative judgment entered in front, need to confiscation of property to repay, the request of the creditors, shall be repaid.

Four, deported

Deportation is forced to leave foreigners crime penalty method Chinese transit. Because the deportation can be applied independently can also be attached to the application, so it accords with the basic characteristics of additional punishment. Foreigners to apply only to the crime (including foreign nationality or stateless person), so it is a supplementary punishment special. The expulsion of foreigners and the "provisions of the entry and exit of aliens law" as the administrative punishment decision, by the public security organs, for violation of immigration law's exit has essential distinction.

The third section of non penalty punishment

A concept of non criminal punishment

Non penalty punishment, refers to the exemption from criminal crime, punishment to entities other than the punishment. Such as the sermon, shall be ordered to compensate the losses

With the development of society, the penalty is always from heavy to light, sanctions method always develop from single to multiple concept of criminal sanctions; no longer is equivalent to the concept of criminal law, will become the inevitable historical development; non penalty method will be used less and more suitable for the development of.

On the one hand, to exempt from punishment but need to give the non penalty, non criminal punishment shall be given certain; on the other hand, the penalty, not only for non criminal punishment.

Type two, non penalty punishment method.

For the circumstances of the crime are minor and do not require criminal punishment, can be exempted from criminal punishment, but according to the different circumstances of the case, be reprimanded or ordered to make a statement of repentance, apology, compensation for losses, or by the competent departments shall be given an administrative punishment or administrative sanctions.

Discipline, is refers to the people's Court of criminal court to criticize, condemn, shall be ordered to make corrections, method is no longer a crime. Shall be ordered to make a statement of repentance, is refers to the people's court shall order the offender a written guarantee of repentance, not in a crime. This method is based on the premise of not giving punishment.

The administrative penalties and administrative sanctions, is refers to the people's court according to the circumstances of the case, put forward judicial proposals to certain administrative punishment or administrative sanctions for offenders to the authorities, processing method and by the competent department for definite.