The logical analysis of qualitative analysis of criminal law 

-- with rape, theft error as the breakthrough point

 

Wang Xin Feng Bo*

 

 

Abstract To:The theory of crime constitution theory and general provisions of criminal law in criminal lawObject errorThe theoretical starting,The false rape, theftQualitative analysis. Conclusion both mutual conflict has followed the common evaluation logic, pointing to the qualitative results only. In the standard evaluation, toObject errorTheory for example, revealThe theory evaluation prior to general evaluation, to general evaluation and make up the logic method of evaluation;Value evaluation for qualitative and standard evaluation cannot start,To explore the theory of violating legal interests and violating norms different answers to the essence of crimeIn order toAnd the choice of value of criminal lawFinalOn the value evaluation and improve the inspection standard evaluation,The qualitative results.

Key word.Qualitative analysis;Object error; the theory of violating legal interests; the nature of crime of violating norms

 

 

Difficult cases are always separated from the slit and edge of legal norms, consider the logic structure within law, the question of value orientation of science behind. In the2000One night a year, not "competent" husband to his dramatic actions took us into the evaluation of criminal law in the world. In the evaluation of the case in criminal law norms, general and special theory and collision and complementary; in the value of the case, the theory of violating legal interests and violating norms flashing their different and crafty ray of light.

A, problem

Case synopsis] [li Mou of the accused person, male,29Years old, unemployed.

2000Years10Month8DayLater, Li Mou of the accused person by his wife on the night shift is not in the machine, disguise oneself go out after committing a crime. When Lee came to a dark secluded place, see a woman from behind the front, feels, catch one unprepared to beat, adultery implement and then in the dark. After the rape, he saw the woman is in a coma, a satchel body, can seize the opportunity to break the satchel straps, grabbed the bag, and then hand satchel fled the scene. Lee home to open the bag, the bag has found1000Multiple of cash and value1000Yuan mobile phone. On the night of the murder, the murdered woman that report to the public security organs. When the murdered woman returned home, found myself robbed bag at his home in the table, we know you are her husband killed, had a heated argument with her husband. Lee then knew that the evil woman is his wife, the looting of property, home either, so I apologize to his wife, and get a wife. Second days, Lee and his wife, went to the public security organ to explain the situation. The public security organs and Lee criminal detention.

The case according to the time sequence is divided into two phases, respectively, indicating the facts of the case related to the two stage, as the basis of this analysis, in order to more accurately complete the Li Mou of the accused person qualitative analysis.

 

Fact    Project   Stage	Behavior	The criminal purpose	The object of wrong understanding	The actual effect of the object
The first stageLee: from down to Li Mou rape women	Knockdown, rape	To seduce women	Other women other than his wife	Wife
The second stageLee: from rape to Li Mou home	While women in a comaPull satchel fled the scene	The illegal possession and property of women's Satchel	Other women other than his wife's purse	Satchel, mobile phone and package within the joint property of husband and wife

 

Seen from the table, Lee in the first stage and the second stage in the two behavior that there are objects of the error of cognition in general provisions of criminal law. How is that affecting Lee qualitative behavior? This effect results should be qualitative results? According to the objective judgment before the subjective judgment, judgment before setting non stereotyped judgment, normative judgment logic precedes the value judgment of composition of crime[1]The author, in this case as the breakthrough point analysis is as follows.

Two, the first stage of qualitative: the crime of rape or attempted crime struggle

(a) evaluation of criminal law: the crime of rape crime

From the perspective of criminal law theory, Lee in the first phase of the act constitutes a crime of rape crime: firstly, Lee's behavior consistent with the constitutive elements of the crime of rape. Lee implementation"Catch one unprepared will means behavior it down "and" the implementation of objective behavior of rape "in the dark. At the time, sex Lee and victimization of women is in violation of women's will of the circumstances, this accords with the essential elements of the crime of rape. Secondly, in the criminal law theory and judicial practice, distinguishRape crime accomplishment and attempted standard adopts "insert", namely: if the behavior of human genital insert female genitalia, complete the form for the crime of rape. In this case, Lee's behavior in accordance with the "insert", therefore, from the criminal law theory perspective, Lee in the first phase of the act constitutes a crime of rape crime.

(two) evaluation of general provisions of criminal law: the objection and the choice of value

On the conclusion still need further research from the criminal law only, because this case exists in general provisions of criminal lawObject error. Object error refers to the subjective understanding of object and the actual infringement behavior inconsistent objects.Object error causes the object impossibility, in our country can be used as a deliberate attempt treatment.[II]Therefore, the focus of controversy in this case is the first stage of qualitative: Lee's object recognition errors if the act constitutes a crime, the specific categories that attempted to object impossibility. Answering this question requires a reference standard, which determines the attempted and accomplished, attempted crime and attempted crime due to impossibility division. Criminal law on the legal provisions of the basic fact is completed as the reference standard, if the completion of the sentence, the unfinished attempted. First, from the criminal law theory analysis, in accordance to the formal judgment before substantial judgment logic, is the necessary requirement of the principle of legality. But this method from the above limitations in the case, so we need a reference standard. It is not only limited to the crime of rape, is the standard to distinguish all the accomplished and attempted crime, it is the substantive standard, is of the nature of the crime to answer. This relates to a criminal law value evaluation problem. In this regard, the theory of violating legal interests and violating norms gives two different standards.

1. evaluation of benefit in law: the crime of rape (attempted)

In the understanding of the nature of the crime and the related essential illegitimacy, civil law countries such as Germany and Japan adopted the theory of violating legal interests, that the crime is the protection of the law against the interests or values or danger. The often argued that the result has no value, that is: if the act is not violated or threatened legal interests, regardless of the perpetrator's subjective malignant and behavior of the anti ethics mostly not guilty. The basis of this theory by Bi Rumba Mo in the infringement of the rights of said, and by later scholars such as Lester further development of rich, Lester will benefit the protection of the interests of the definition method.[3]At present, the theory of violating legal interests has become the countries of continental law system such as Germany and Japan through saidAlso, has been generally recognized in the criminal law theory circle of our country.

From the theory of violating legal interests perspective evaluation one violation is not guilty of attempted, (also known as attempted crime) or accomplished, should examine the behavior of the actual damage or may infringe the law profit size. Therefore, to decide whether an act is for object recognition error object impossibility, should this behavior for object error led to its objective is not against the law to protect interests as the standard. If point to the protection against the objective of its legal interests and crime of the same interests, it still constitutes a crime, for example, will be a mistaken for ethylene and killed behavior; if any legal protection did not infringe on its objective interests do not constitute a crime, for example, will wax mistakenly believe that the enemy while shooting behavior; if point to the interests and crime objective to protect against the objective law of different interests, it belongs to the imaginative joinder of offenses, in the two crimes one felony punishment, as a felony attempted crime, for example, the giant panda mistakenly believe that the enemy and the act of killing.

    Return to the case, judge the key violation or attempted is wife rape behavior is a violation of the law to protect the interests of. According to the theory of violating legal interests, the crime of rape law should be independent interests fingering firms protection of women. In this case, Lee's behavior from the objective fact indeed violated the self interests of women, but because the object of rape in fact is his wife, combined with China's judicial precedent and the facts of this case, Lee did not protect against the interests of the law in our country. As in the case of Li Mou is in fact the infringement on the marriage of his wife and self interests in violation of her husband rape self interests belonging to the same class of problems, therefore, this case can be related theory of marital rape and regulations describe. First of all, from the academic point of view, for marital rape "say" and "negative" said whether convicted two views, did not form a unified opinion. "Sure" from the rights and duties of the view of sexual rights as an absolute right, is a natural person to enjoy the rights, is the exclusive and exclusive. Even if one party defaults do not form the other party to enforce its obligations to reason.[4]"Negative" is that"Rape" the word itself means sex outside of marriageTherefore, China's criminal law does not protect the autonomy interests of husband wife.[⑤]Secondly, from China's judicial watch,Think of two married the Supreme Court promulgated the rape case: mandatory behavior during normal life between husband and wife not crime, the relationship of non normal duration husband forced to have sex with his wife which constitute the crime of rape. During the period of non normal existence here, refers to a judgment of divorce judgment is not yet valid period.[6]The main academic point of view of criminal law agrees, think: any one of the couple is asking the other party with their sex life rights, at the same time, any one of the couple has had sex with another party's obligations. The relationship of rights and obligations is legitimate, legal protection. As long as the relationship between husband and wife, sexual behavior occurred between each other is legitimate, anyone may interfere.[7]Visible, regardless of whether the marital rape crime, in China, during the existence of marriage husband wife rape normal behavior is not illegal. Of course, this does not necessarily constitute a reason for the interests of the victims are not protected in the case, it should also notice the difference between the case and the case of rape within marriage: in this case Lee is the rape his wife in the understanding of error conditions. This, I think, the theory of violating legal interests that benefit objective result of infringement, the behavior of human psychological fact should not be considered.

The comprehensive benefit in law point of view, because Lee wife rape behavior does not infringe the crime of rape in the protection of legal interests, because the crime object element is not suitable and negates the crime accomplishment was established, so its behavior belongs to the object impossibility of attempted rape.

2. evaluation of violating norms: the crime of rape crime

Another answer is on the crime, what is the nature of illegality, violating norms theory holds that the essence of illegality is not in violation of the criminal law itself, social ethics but in violation of the criminal law behind, emphasizing the harm behavior to social norms. Norm violation was first put forward by the binding, and inheritance and development for the subsequent German scholar Meyer et al. And the theory of violating legal interests results no value on the contrary, violating norms that conduct without value.[8]The theoretical logic is: because of illegal acts in violation of the criminal law is a social ethics maintenance behind, so we must pay attention to the behavior of human anti ethics in the judgment of illegality. The ethics embodied in the control of people's heart, therefore, the standard to distinguish between crime and non crime, attempted and accomplished is the size of the anti ethical behavior subjective malignancy and behavior itself.

By the norm violation theory point of view, visible, it emphasizes the objective harm behavior itself and the subjective malignant and not pay attention to results. Following this logic, the general crime of rape and the facts of this case do the following:

 

Fact      Social crisis Comparison         Harm	The subjective malignant	The anti ethical behavior	Objective harm
The criminal purpose	Know about the object	Behavior	Object
The crime of rape (not including marital rape)	To seduce women	Other women other than his wife	By violence, coercion or other means to seduce	Other women other than his wife
The first stage of the case	To seduce women	Other women other than his wife	Knockdown, rape	Wife

 

Observation on the table shows, according to the norm violation, because in this case and non marital rape rape in full agreement with subjective malignant, conduct anti ethics, social ethics in this case Li Mou has violated the rape the maintenance. Although Lee because of misunderstanding and raped and the object of cognition is not consistent with the wife, leading to the objective harm this behavior is much smaller than the implementation of adultery may bring harm to other women, but the objective harm not violating norms focus, no substantial influence on conviction. Therefore, on the basis of violating norms, Lee's object recognition error cannot make its act constitutes a crime, and should be the crime of rape crime.

   3. evaluation of general provisions of criminal law: the crime of rape (attempted)

    Starting from the general provisions of criminal law, there appeared to be a qualitative results two opposite, but because ofThe theory of violating legal interests has become the value orientation of criminal law practice and generally accepted theory, from the theoretical and practical level, general provisions of criminal law nature of the first stage violations results would take the theory of violating legal interests of the attempted rape. The author thinks, the value choice is right. First of all, it is the inevitable requirement of our judicial precedent. According to the formation of the Supreme Court above the two cases of rape in marriage recognition principle, Li Mou rape error during normal marriage, wife can't constitutes the crime of rape against the object, so Lee constitute attempted rape. Secondly.The value orientation of benefit in law embodies the modesty of criminal law. Criminal history is the history of the tightening of criminal lawWith the civil law, the civil law developed, criminal law, the criminal law of the proportion in the national legal system gradually tightening. Synchronously, the criminal conviction punishment more add simplified, gradually stressed out private rights in non malignant event processing, state power stage. Modesty is the embodiment of human rights, is the principle of legality, criminal law is the trend of historical development.[⑨]Norm violation theory emphasizes the social harm is the essential feature of a crime, justice in the legal application if this is the value orientation, are to expand the scope of criminal law evaluation too, and easy to ignore the importance of legal evaluation. And the law against the infringement law emphasized that actual results, in the application of case law if you have to use the value evaluation, this can play on the criminal law limited the role of interpretation. Otherwise, the saying of Ihering: "the penalty will be fulfilled as a double-edged sword, use not when, national and personal two victim."[⑩]

(three) general provisions of criminal law and the theory of "competition"

    For illegal behavior qualitative problem of the first phase of the case, from the general provisions of criminal law and the theory breakthrough, seemingly contrary conclusions, but they actually follow a common evaluation logic. In the case analysis, as a result of the specific violations, start setting of violations from the specific crime of constitution. General provisions of criminal law is not involved in the case on the generality of the provisions of general situation, general and special theory can not be separated. General provisions of criminal law of object impossibility theory provides a solution for the first stage of the argument, according to the judicial case, the first stage in this case belongs to the target error, so attempted rape. Further from the theoretical analysis, it involves about object impossibility theory, which enabled the value evaluation, and reached the same answer and judicial cases. Therefore,The theory and general have close relationship, setting from the form of analysis to the non stereotyped analysis substantially, by specific normative evaluation to the evaluation of abstract.[11]In the application of judicial cases, shaping and standardized, the other two complementary. In the codification legislation, non standardized evaluation and value for the program, and another two for the chapter.[12]

Three qualitative, second stage: accomplished theft or attempted dispute

(a) qualitative controversy: theft or robbery

Conviction logic subjective objective elements based on second stage before, in this case, the first problem we encountered with the first stage is different. In the first stage, general provisions of criminal law and the theory of different analysis results accomplished and attempted to fight. However, in the second stage, the first problem we encountered is suspected of Lee's behavior is robbery or theft, only to be accomplished and attempted to clear discussion after the debate.

On the second stage of qualitative, that is the focus of the Li Mou rape: take the"Catch one unprepared to beat"If the violence should be used as the second stage convicted of crime elements. If give an affirmative answer, because have the means and the corresponding behavior should be convicted of robbery. If give negative answers, then Lee in second stage behavior because they do not have the means of violence and should be the crime of theft.

Theft or robbery?2005The Supreme People's court "on hearing the law applicable to a number of criminal cases of robbery and snatch, opinions" article8Has been given a clear answer:"The perpetrator's harm, rape,...... In the victim unconscious and unaware of the situation, and after the implementation of the crime of intentional homicide behavior, temporarily take away other people's property, should be implemented before this specific crime and theft facts combined punishment for several crimes."For this problem, and the necessary theoretically further argument. Some scholars said: "the logical order on the behavior occurs, the violence is the method by which the objective behavior in the implementation of the act of possession of property. Therefore, if people act first application of violence as it so, after jiancaiqiyi and take away the victim's property, the violence first non violence of robbery prescribed."[13]For the judicial practice and the theory circle of our country's point of view, the author holds the affirmative attitude. In addition, the problem about the distinction between theft and robbery, but also from the shape analysis of robbery crime: behavior robbery violence, threats and other means should be act as the objective behavior means, that behavior is needed in the implementation of means behavior with illegal possession of public or private property the purpose of. This involves the systematic position of problems for the purpose of illegal possession "of the subjective elements of the crime of robbery.". The crime of robbery and the crime of embezzlement and other crimes against property, belong to illegal possession crime. Although it does not belong to the legal purpose crimes, but the theory of criminal law requires such crimes should be for the purpose of illegal possession. Whether the "for the purpose of illegal possession" as "the intention of possession" intended outcome themselves or third party in possession, or interpreted as "the action that the" possession with intent and use punishment, both act shall have the intention of illegal possession in the robbery, and that the intent of the means of behavior that has. In this case, lee"Catch one unprepared will means behavior it down "is the implementation of the rape, does not have the intention of illegal possession of women's property.Therefore, according to the criminal law educational world about the purpose of illegal possession as subjective illegal factor occupies a property crime - said, combined with the case, the behavior of Lee means because of not having the purpose of illegal possession of private property, the implementation of behavior can not be used as the second stage of illegal acts, so the second phase of the illegal behavior does not accord with the robbery the constitutive elements of the crime of theft, only in qualitative.

(two) theft accomplished or attempted dispute

1. evaluation on Criminal Law: accomplished larceny

Follow the shape analysis prior to non stereotyped qualitative logic analysis, we first from the criminal law theory of vision

Crime issues to consider second phase angle. Standard of distinguishing of attempted theft accomplished,, criminal law theorists often take the "out of control+Control ", that is the accomplishment of a lost control of his property, on the other hand is the behavior of actual control of the property.[14]Although the final is to "out of control" or to "control" as the standard is still controversial, but this does not affect the application of this theory in the case. In this case the property is stolen from the actual control of the victims, and have been in Lee's actual control, fully meet the standard of accomplishment of crime of theft. From the perspective of criminal law, the crime again draw conclusions.

2. evaluation of general provisions of criminal law: theft (attempted) and its dilemma

    Starting from the general provisions of criminal law, the second stage is still object error problem. Lee mistook his wife carrying property as other women's property stolen, therefore, from the view of the general provisions of criminal law, the legal problem of the existing lies in: Lee's theft belong to the object impossibility, which constitute the crime of theft attempt?

    The following the author will follow the general provisions of criminal law ideas for further analysis, but the dilemma faced by also gradually. According to the "marriage law" article17Article, article18One, our country of matrimonial property system and the matrimonial personal property system of combining form, either the husband or wife special supplies belongs to the husband or the wife's personal property. Therefore, according to the general case, can do the following to distinguish Lee's theft object: satchel, value1000Yuan mobile phone belonging to his wife's property,1000Element belonging to the joint property of husband and wife. To explore these property can object as the crime of theft, theft of nature should be. In this regard, the theory theory of the following:

(1) ownership said: this said that the essence of larceny is violation of another's property ownership. Beccaria made the following comment on theft: "for those made of other people's money should be deprived of their property."[15]This says the theft who is owner of the property situation out of the main body of crime outside.

(2Ownership)+Possession: this said that the essence of larceny is a violation of other lawful property ownership or possession.[16]The owner said will steal illegally all or possession of their property in the crime of theft cases excluded outside.

(3) control said: this says that the nature of theft is to others in fact dominant property infringement.[17]

    Combined with the case, because the satchel and value of Li of the stolen1000Mobile phone ownership element belonging to his wife, it can become the object of the crime of theft. As for1000Yuan in cash should be as the conviction and sentencing of the crime amount, these three doctrines are faced with the dilemma: because of matrimonial property system requires either spouse cannot become the common ownership of property alone, from the first theory, Lee's theft does not have any breach of the law, because his wife is not the owner of the property. This interpretation is plainly wrong, because if third people steal this property will also be a crime. Second and the third theories to make effective answer, because the wife came home to his wife Lee has possession of control rights, but his wife came home that infringement disappear.

In the legal gaps, we had to face the choice of value: if the attention to his wife before going home to his wife Lee have violated control and theft1000Element in crime, objective harm is ignored in the case of smaller. But if that wife home after such infringement disappear or directly from the first negative infringement theory exists, then the theft1000Element as the object impossibility, and ignored the obvious subjective malignant lee.

How to convict? The theory of violating legal interests have different answers and violating norms.

(1) law profit violation of larceny (attempted) said

The theory of violating legal interests to causes damage to the conviction of law interest standard. In this case the steal Lee1000Yuan did not ultimately from the wife actually control the scope, because Lee crime object is the wife, the wife in the home will start again possession1000Yuan, so Li to this1000Yuan does not infringe the legal interests of stealing his wife. Lee to steal it1000Element belonging to the object impossibility, only constitute theft attempt.

(2) norm violation of theft accomplished said

Norm violation on whether the behavior violate social norms as the standard of conviction. According to this, Li to object recognition errors in this case, took his wife carrying1000Yuan as other women's property stolen, although this behavior is not the ultimate against his wife in possession of the property rights, but this behavior is a violation of the norms, should be accomplished larceny determination.

For the first stage analysis of reasons, according to the evaluation of the general provisions of criminal law, the second stage should be a law against that theft (attempted) said. However, this approach has serious problems, analysis of the criminal law in disregard and on the value evaluation is the principle of a legally prescribed punishment for analytical approach. The author thinks that, at this stage, starting from the object of general provisions of criminal law in criminal law theory of errors, relevant theories on the analysis approach to the evaluation of criminal law correct conclusion.

3At re evaluation of criminal law theory: new evidence of theft accomplished

    In order to answer general provisions of criminal law proposed "Lee's theft belong to the object impossibility and attempted crime", we should first clear the case analysis of object impossibility should be defined in the specific circumstances in the case as the scope. If more than this range, the crime is not recognized by the law of the relevant similar acts of crime object as the establishment of object impossibility of reason, is not correct. For example, according to the rules of "interpretation" several issues about the specific application of law in the trial of cases of theft of the article1Article2Paragraph4Item: "steal their belongings or close relatives of the property, in general not handled by crime; criminal responsibilities shall be investigated for indeed necessary, punishment and crime in the society should also be differentiated." This explanation is for general theft cases of theft, but in this case is not suitable, because this explanation is based on the subjective knowingly stolen property belonging to the family as the premise, to avoid the error of cognition itself situation and mainly from the angle of human value of evaluation of criminal law. If the judicial interpretation of the establishment of object impossibility of reason, have the value evaluation criterion for evaluation of suspected before. Therefore, in this case, whether the object impossibility evaluation standard is: Lee is due to the understanding of subjective mistakes and making the results may not happen. In this regard, need to return to the criminal law theory of larceny in a certain type of analysis.

    Theft crime belongs to the result crime. In the result crime, in addition to considering behavior outside, still should see its whether the harmful results. The key to this case is that: Lee error to steal his wife holds whether the theft results without money. This involves how to understand the implication of the results of the theft, the problem can be further classified into the system positioning illegally in the theft of stolen property of the problem. Theft is "to the illegal possession for the purpose of subjective elements", but this possession as a state, and possession of property according to its original use after use is different. In this regard, Professor Chen Xingliang think: "can't get through cheating, seize, encroach on theft, and access to others' property of illegal possession of state, as is the illegal possession of the purpose of illegal possession of the corresponding behavior of. The purpose of illegal possession of the corresponding holds the behavior, is the theft, fraud, embezzlement, seize possession behavior outside, it is not the act of the crime. For obtaining property crime, the act of possession is not a legal elements."[18]Therefore, the results should be interpreted as theft, possession and non possession behavior. For example,ATo stealBThe car, and the car into the home building underground garage, thenBHas lost control of the car, and the car is inAControl, butBIn theABefore the use of the car was found the stolen car. This,AThe act of theft, still should be punished for theft accomplished, not because ofABefore using this car was identified as a attempt. Back to this case, although Lee did exist object recognition mistake, but not because of general analysis of objects in the wrong ignored the illegal act as setting necessity analysis. Lee's illegal behavior has the property out of his control and in the possession and control their own, despite subsequent behavior not, this does not affect the theft results that have happened. Therefore, the object second phase error can not make Lee violations constitute the object impossibility, Lee's behavior should be defined to accomplished larceny.

4General provisions of criminal law and theory. ""

From the above analysis can be seen, from the analysis of general provisions of criminal law and the theory seems to draw a qualitative results of two opposite, but the two actually again at the same logical approach, this approach to answer is accomplished larceny. Set judgment before the amorphous judgment based on the logic of criminal law theory, the breakthrough, the theft of the shape analysis, can be found in this case has elements of theft. Although the object of general criminal law of error theory put forward a challenge to the case of qualitative, but the study object impossibility theory, which emphasizes whether the object error caused the unfinished crime, the constitutive elements of crime is not available. In this case however the elements have completely, questioned the general provisions of criminal law is not enough to constitute the object impossibility of reason, the second stage should be defined to accomplished larceny.

Regression four, problems of the theory: look at the case from the evaluation of value

The analysis conclusion, the above two stages according to the author, what qualitative outcome of this case should be: rootAccording to the "criminal law" article23Tiao Hedi236A, Li Mou of the accused person's behavior constituted the crime of rape (attempted). According to the "criminal law" article264One, the Supreme People's court "on Several Issues concerning the trial of cases of theft of application specific explanation" article3One, the Supreme People's court "on hearing the law applicable to a number of criminal cases of robbery, opinions" article8The composition, Lee's behaviorAccomplished offenseLarceny. According to the "criminal law" article69The provisions of article two, combined punishment for several crimes of the crime.

Standard evaluation before the value evaluation is the judicial logic approach should be. Design of criminal law theory and many other charges is the summary of behavior in real life induction, but infinite abundance reality cannot be covered Co. general criminal law. For many of the crime, criminal law is difficult to achieve accurate evaluation of all, only in the qualitative to quantitative adjustment to maximize fairness. Therefore, it is necessary from the aspect of value evaluation and abstract the core problem of this case and its analysis. The author thinks that the core issues in this case: the objective evaluation on the great danger of subjective malignant and minimal embodied in the same social behavior, this behavior should be how to evaluate? This question is that in the case of the internal structure of the accomplished offense and the attempted edge again and torture in criminal law theory.

From the perspective of theoretical depth, the nature of this problem and crime are closely related. The nature of the crime, can be decomposed into the following four pairs of relationships: a statement, from the main point, can be expressed as: crime refers to a crime or crimes. Two, from the point of view, can be expressed as: crime refers to the actual damage to social order or to be in violation of ethics. Three, by definition, can be expressed as: crime refers to an actual evaluation of law or independent of legal evaluation and objective existence. Four, from a number of perspectives, can be expressed as: crime is the case or by the numerous cases of the phenomenon.[19]In fact, the two factors involved in the expression of every kind have maintained the relation of unity of opposites, constitute the essential factors of the nature of crime. In a certain sense, the process of case analysis, the conviction and sentencing is completed by the interaction of these eight factors.

The case in question belongs to the category of second kinds of expression. Specifically, Lee's subjective malignant is reflected in its behavior in violation of ethics ", and its objective harm the performance of the social order of the actual destruction. In fact, the second kind of expression and the first kind of expression have inherent logic connection. Subjective and objective harm the common crime. In addition, behavior person also has the criminal personality, the behavior person has the potential harm to society. Therefore, the comprehensive first and second expression, can be found in three according to Criminal Countermeasures: subjective, objective hazards, hazard potential. The theory of violating legal interests more attention to objective harmfulness of punishment, and then pay more attention to the punishment of violating norms on the subjective malignant, potential hazard. In this case, Lee has obvious subjective malignant, but as the object of the error of cognition, objective harm. However, Li Mou behavior of malignant explained the criminal personality exists, more predicts its make possible. As for how to handle the relationship between the three, with the conviction and sentencing, beyond the statement of the one or two category, has been related to the statement of the three: the definition of crime.

In a certain sense, expression third "independent legal evaluation and the objective existence of things" includes one or two contents description. It is the essence of crime. Japanese criminal law scholars Otsuka Hito said: "the crime into meaningful crime and form the significance of crime. Substantive crime refers to antisocial behavior widely, refers to the violation of social life interests (interest) of human behavior....... Significance of the form of crime, refers to a penalty in the essence of crime, which is in the law subject to the punishment behavior."[20]The formal sense of crime refers to the actual evaluation law third expression in the "". The meaning of the form of the crime is a kind of legal evaluation on the essence of the crime, it is different from the essence of the crime, but must be based on the essence of the crime as its legal basis, in order to prevent the abuse of state power of punishment. Fourth kinds of expression to the essence of crime, is the meaning of the form of crime and contains two tiers of meaning: if the crime is a phenomenon, is the meaning of the form of crime is the legal evaluation of criminal phenomenon, it embodies the criminal laws and regulations, or legislative; if the crime as a case, then the meaning of the form of crime is the conviction and sentencing of the case law, or judgment. Regardless of the definition of crime or crime case of definition, is a kind of evaluation, it needs to follow certain standards, reflect certain value. In this case the characteristic is it free to the accomplished offense and the attempted boundary, objects of protection of the torture law and follow the law of value.

Five, the conclusion: a bird's eye view of criminal law evaluation logic forest

    Starting from the general provisions of criminal law and criminal law theory, qualitative analysis for each stage of the case have come to the opposite conclusion. But as mentioned above, the two conclusions are actually the logical relation in common, and point to the same analysis results. In the case analysis, the author tries to followObjective to subjective judgment, judgment before setting non stereotyped judgment, normative judgment qualitative logic value judgment beforeThis essence, and general provisions of criminal law and the theory of logical relationships between closely related, and this relationship can be explained from two aspects: first, from the legislative point of view, the provisions of criminal law the concrete crime inevitable early in the general provisions of criminal law, therefore, the theory of the provisions of the crime more targeted and specific. However, the general content of the abstract, general is two points: first, the necessity of common problems like crime or crimes in general way, needs to make a unified regulation; secondly, because of the lag of legislation, for the future some behavior and there is still no specific criminal policy, legal need given a response to, and then to prevent the abuse of judicial power. This criminal policy include the study of the nature of the crime, the value guidance and so on, they are often closely linked with the value evaluation. Second aspects,From the judicial point of view, summarized evaluation evaluation theory and general should precede the value evaluation,In order to ensure the implementation of the principle of legality. But when the application specific provisions and general provisions of the case are not logically self consistent, value evaluation in the general and the nature of the crime substantive inquiry will be on offer. In this case, the general provisions of the criminal law in general for the performance of object impossibility theory, the specific provisions of criminal law theory and embodies the crime of rape and theft, robbery crime. The author tries to objects in the general provisions of criminal law the fact mistake to cut, shape analysis of object impossibility is established criminal law of the crime, and the normative analysis to value analysis can not be completely applicable.From the standard point of view, the criminal law theory first, to supplement the general provisions of criminal law; from the point of view of value analysis, general provisions of criminal law such as program, criminal law theory such as chapter, chapter titles with the case will not serve for programme.Qualitative analysis which is the case of the first stage mining attempt, reason and second stage production of accomplishment.

The logic of criminal law evaluation of forest has its own unique landscape. Here, value evaluation in general provisions of criminal law is the root, stem and normative evaluation, evaluation standard of criminal law theory is the leaf. Here, leaf total before stem to undertake the dew of the component, but lose stem, leaf is no sustenance. Here, the root always refuse of morning dew on the visit, but leaf and stem but permeates the root nutrition, when the leaves and stems are unable to take the dew of the component, the root will be passionate and cautious welcome arms out of the morning dew.

 

 

 

Wang Xin, Feng Bo: "the logical analysis of criminal law: with qualitative error rape, theft as the breakthrough point", contained in the "Tribune",2010No.3Period.

[the "criminal law by NPC press" in "("2010No.8Phase I). ]