Three 

Social harmfulness is domestic criminal law scholars understand the essence of a crime, namely that the basic standard of whether an act constitutes a crime. 

In essence, the definition of crime, in the history of the development is far earlier than the definition of a crime, the latter basically is the product of the legal age to appear. Almost in the criminal law at the same time, had to the crime super standard "essence" to explain the phenomenon, because the exercise of any power of punishment, even in the slave society or medieval autocracy, needs the rational basis. We opened the nineteenth Century criminal law or the law books, in almost every book, evaluation can be found on the crime of political, social, moral, religious and so on so-called "substantive". This kind of crime essence of "evaluation" in criminal law theory is established, which has become a complete formal speculative theory of criminal law. This is the early social science division of labor is not developed, the norms of science has not yet formed a product of the times. In the human history of the development of legal culture, the criticism and negation for the criminal law theory of this kind of pure form, metaphysics, at least in more than 100 years ago, with the further division of labor and the development of modern social science, especially the contribution and criminal positivism school social theory of criminal law will be outstanding theoretical built right, has been completed basically on the. We still have to face this problem today, is really an unfortunate repetitive movement. 

"Social harmfulness" this kind of substantive definition of criminal standard of weakness is the specification to life, property, established on the basis of the criminal system completely depends on the behavior and therefore, it essentially gave up the essence of the concept of crime. If the social harmfulness, we claim that the nature of the crime is and obviously, all is not crime, then the difference only standard of crime and other harm to society and is inevitably only depends on whether to ban the criminal law and, and is for formal illegality. This so-called PI understanding so that it became a game of words like things, the PI into is decided by the legal form, so it is the form of the crime. In other words, formal illegality recognition of social harmfulness in this theory is totally dependent on the behavior of the. As for what is the illegal nature, that is exactly what harm to the society, what is the harm to the society, with the objective to identify the specific standards for how Is it right? Harm the social benefit the illegal questions, in the theory of social harm, is not the answer, since all of them are the norm, as long as look at this and Is it right? Illegal form can be. 

The problem is, and is the social harmfulness and harm to society and to exist between the two fundamentally different. A behavior that is harmful to the society, is a description of the behavior of the property, the property is the behavior of judgment; and the behavior of social harmfulness, refers to the attributes of some variation induced by behavior in social life. If this state variable tutor, is a proof in the objective is to. We first prove that the society only by some objective, specific hazards, then prove that the harm is caused by the behavior, we can conclude that, this is a danger to society or socially harmful behavior. But the behavior Is it right? Endanger the society, is not in the specification or have not been identified previously behavior in the action attribute to search for, go to work the objective status but the behavior in the. Therefore, the so-called social harmfulness not only in the process of thinking are sophisticated, and, logically does not accord with the basic form of logic. 

Understanding of the social harmfulness of crime do for nature, whether it be praise and praise how words extremely, social harmfulness is not standardized quality basic, do not have more normative. It's just negative evaluation for the crime of political or social morality. The evaluation of course can not be said to be wrong, the problem lies in the criminal law significance it has no entity. Of course, no one would claim all the harm to society and is a crime and should be punished. However, if you want to punish a behavior, social harmfulness can go beyond legal norms according to the end at any time, because it is the nature of the crime, in case of need can be decided by normal form. Social harm that provides a seemingly has the criminal law theory of color according to not only through the "criminal nature" coat for penalty break the principle of legality, but also in practice for the national rule of law plays a reverse role. 

Because the understanding deviation of this specification, fundamental, social harm that often come to some people heavy-hearted conclusion: in Chinese present economic reform and the high speed economic growth, like the rest of the world in the same development stage, is the growing economic crime problems. The crime with the non crime of illegal economic activities naturally become a hot topic in criminal law academic discussion. The theory of social harmfulness of the conclusion is: the fundamental basis to distinguish between crime and non crime in the economic crime is whether the behavior is harmful to the society; and that the key to the social harmfulness is the economic activity is beneficial to the development of productivity; that is conducive to the development of productive forces to the long-term development, rather than short-term development according to the. We despite an economic activity is conducive to long-term development of productivity Is it right? Or Is it right? May become the topic for study to distinguish crime and non crime of the criminal law, and whether the jurists have to answer this question, but from a practical point of view: in Chinese at present this kind of market economy and the start time, even if we the first-class economists all transferred to the courts at all levels served as judges, lest they also cannot categorically conclusion, a and for decades or even longer to Chinese economic development concrete produced what influence or what results. This is a economics the Ao did not and could not completely solve the problem, how it can become the criminal law to distinguish crime and non crime of standard? This standard whether or how the courts judge master? This kind of "absolute right", but simply can not apply the theoretical conclusion, will only lead to a practical results, it is a "big government watch is right" (the early years of the Republic, a VIP train leave at three. This watch is slow half an hour: two thirty. "." All train was delayed thirty minutes, is "the officer big table"). Because no one judges dare or able to assume this responsibility, and have no choice but to lead to even ask government intervention led. This intervention is through the "sword", so we a theoretical conclusion will give criminal execution, the independence of the judiciary to produce what effect? Our criminal law scholars Is it right? At least not destroy the rule of law? What is the criminal law? 

Four 

And the "social harmfulness" different approaches but equally satisfactory results is studied in the theory of criminal law in the methodology for scientific and normative basic deviation. One of the most typical is the can with changeless should "dialectical unity". The dialectical unity and the so-called "subjective and objective", "the combination of principle and flexibility" such as the class "principle", in the form of basic logical thinking is a typical is rather than sophistry. 

In an international criminal meeting Chinese scholars about the basic principles of criminal law is reported, a foreign scholar asked me: "so many contradictory things how organic union, decide how it combines who industry?" Methods the harm complete departure from theoretical research on basic rules for the order of the criminal law is the largest, it is criminal law from its own norms and arbitrary th needs interpretation provides broad theoretical basis. To use is of principle, not is flexibility, a dialectical exposition to only three results: one is that the criminal law scholars theoretical thinking ability; the two is for the judicial practice is meaningless; the three is for the administrative and law intervention provides adequate theoretical basis. As for the realization of criminal law itself, not only the theory of positive effects, the main reaction. 

This kind of logic is still our criminal law theory study on the trunk. In the essence of the scientific proof of a crime is the behavior of social harm, the basic logical structure is: why the penalty crime? Because it is harmful to the society; why is the behavior that is harmful to the society? Because it is how the subjective, objective -- is how formal illegality (in the criminal law theory of our confkrmity of constitutive elements and illegality is the same thing); why this behavior is equipped with components (illegal)? Because it is harmful to the society, began to "dialectical" cycle. For a judicial practice of people, this kind of crime and non crime is rather than the "essence" of meaningless, for criminal legislation is unintelligible. We Is it right? Should when using the dialectics of the philosophical category seriously? 

In the methodology, this kind of "principle" constitute a number of feudal criminal law theory in the corner. Their common characteristic is, philosophical, political, economic, social or steal Abstract expansion instead of law the Ao specification logic and argumentation and criminal law in the determination of the actual rules. Said it "partial", because from the norms and practices, to thinking itself for the purpose, in the paper the music, looking for new opportunity of legislation or judicial organs, is unable to start application; said it "safe", because it can be used in any place, at any stage theory, and always right, absolutely insurance. Those who say not clear place, as long as the "corner" in a station, not only can "despite wind and waves", and speculative who room is limitless. In fact, this is very obvious, these concepts, principles appear, is the basic time theory is not clear or stultify oneself. With this kind of slogan, principle to replace the standard quantitative study of law in the criminal law study is prosperous, to the number of generations of quality and the theory of criminal law and the judicial practice of a basic reason, is a major obstacle to the development of China criminal theory. If these things can replace the standard argument, so our criminal law scholars should withdraw from the pulpit, and let the philosophers, politicians and economists in, because they have much better than we. 

Five 

Crime is a social phenomenon, is not only the object of the criminal law science research; it is also a lot of other social science research of the issues involved in. Different disciplines, the crime phenomenon understanding and definition, starting from the purpose and methods of this subject, the criminal will have different angles and has a conclusion. This is a normal phenomenon research and science division of labor in the. However, this task can be completed by the subjects themselves, it is irreplaceable. Anyone can describe the apple fell from the tree, only gravitation is mechanics. 

Our theory of criminal law at least lazy at this point, in the "crime" is "isolated individuals opposed to the rule of struggle" as the classic definition of crime in criminal law, and be carried out in the criminal law theory of almost all far beyond the criminal object theory in. We should pay attention to me besides the theory this paper era of history, social background and discusses the starting point, firstly we should pay attention to is, this is the definition of a political rather than normative. Whether it is correct, should be subject to the relevant conclusions, instead of our criminal law problem. But it is a definition of crime in the criminal law. If we insist on from the angle of class struggle to reverse the substantive norms of criminal law, so we Is it right? Shall all detainees as anti capitalist rule of proletarian hero to cheer prison in New York? 

We should not forget, clear legal provisions have double crime in our criminal code in the double crime, that is the indirect application of foreign law according to the. The so-called "object" of this kind of crime is likely to be the "capitalist relations of domination", we should also pay attention to, China is a series of international criminal convention members, these conventions of constitution of crime are part of our national criminal law. On this understanding not even in the specification, evaluation, it at least is in violation of the present criminal law. 

The understanding of the harm is more and more embodied in the judicial practice. First of all, it is in the conclusion is bound to criminal political nature as an enemy, violates the basic requirement of political equality in the constitution citizen thus; secondly, it is also a complete departure from special prevention of penalty; finally, it is the direct judicial practice of "caused by the deviation of legality", because this allows political judgement. This will undoubtedly occur below the influence on each specific participants in criminal justice. 

Six 

The author in another paper, once has said: "legal scholars social conscience and responsibility lies in the realization of social justice embodies not through the law, also is not the absolute make prompt standard science, but lies in finding out in the specific historical conditions can lead to specific programs and the way is just to solve and ideal the reality of the." 

Our criminal law theoretical research on his works is full of pride. It's no big deal. It is a basic rule of this pride cannot violate academic and moral. In the criminal law of our, frequently claimed that only their own theory is that the nature of things, it is scientific. For no theoretical research conclusions of previous and understand others, buckle on a top surface into the hat was completely denied. We don't understand, "because we are, so you can find the absolute truth or the essence" this conclusion, how in the theory logic can be established. This way, people can easily think of false yesterday. "". However, even for China law as soon as possible perfect and development, we should not continue to "bring order out of chaos" meet on the? 

Crime is a common social phenomenon of human society, for the study of crime and punishment, according to the various countries of different social and cultural background and historical development, theoretical differences is normal. However, the basic principle is as the norms of science of criminal law in common. The theory of criminal law development in the world today, the criminal law scholars all over the world together under the long-term human for crystallization of criminal law theory, it also should be the basis for our future development of the theory of criminal law. Please calm to think, today we are in the theory of criminal law, the number of the most basic concept or category is we in this ten years development or created? Why we came, the ultimate truth of criminal law that, everyone else is a fool? Said Chinese stupid not to One's blood boils with indignation. pride than foreigners, and realize scientific confidence and courage they need Chinese no more intelligent than the foreigners. For the criminal law scholars based on class struggle, maybe it should be clear that, communism is not originated from Gao Jia Zhuang, Marx was not born in the sink, they are from the west, from the capitalist society. Our basic requirements cannot be so inconsiderate of the so-called "seek truth from facts", not his own pride they recognized the fact itself. This is not to China or China people's credit, won't change our criminal law theory research level. It will only make the theoretical research have no reason to rest on its laurels. Moreover, the theory itself, Is it right? Not academic research institute can accept? 

This theory of parochial arrogance causes not only for the former or the foreign criminal law theory or viewpoint arbitrary critical violates the basic academic ethics and deny - because we may not understand what is critical discourse meaning; not only leads to theoretical food not, know but not why; it also leads to the some quality the author theory much better, some scholars responsibility scholar, is doing some theoretical research duplicate or invalid effect is not good. 

Chinese conditions and foreign is not the same, and the past is not the same, but this is not our criminal law theory research stay in yesterday and retreat arrogant reason. Therefore, the author wrote this booklet. Criminal law scholars led by at least more specific to see from one side, the study and development of the theory of criminal law of human achievement, why not find the essence of criminal law and crime, why is not consistent with the China conditions. We should at least know why. 

Seven 

Do not know can not think Chinese society is a pan moral society, but, at least in the criminal law theory, this tendency is very obvious and be in the right and self-confident. "Distinguish right from wrong", "be quite distinct from each other", "good, evil", "love and hate" concept, and so on, are strong in the criminal law scholars view. The practice of criminal justice could not thus affected and even encourage. 

We do not evaluate these values are correct, but only from the human cognitive ability and understanding methods to indicate it may bring social side effects: put aside the interests of people in the social behavior factors in whether, if we admit that human cognitive ability is constantly developing and so is limited, the is and non, Jing and Wei, good and bad judgment and understanding ability is limited, so in this case, the "clear" and "enemies" might have become a powerful social force. It is not entirely theoretical abstraction hypothesis, we Chinese has paid a painful price. Only a short while ago, many outstanding politicians and economists claimed to have found the ultimate truth of social and economic development, the planned economy, and spare no effort to use the machinery of the state's criminal law, is committed to the elimination of avenging market, all this is at least in decades of economic backwardness and the two generation of youth at the expense of. The criminal out what is today may have made outstanding contributions to economic development, talented entrepreneurs and business? For what? 

Once accompanied a delegation visited the Japanese criminal law in a prison, the host for the prisoner to be composed entirely of Symphony Orchestra concert. After the show, a member of the delegation smiled at the prison authorities: "congratulations to our national prisoners together, also can not afford a band." The host filled with pride. As the criminal law scholars of the heart was hard to stab of pain: "all the members of the band is not have to show their talents in prison?" 

Le Louvre Museum from the world of admirers gathered in special deep Gallery "Monalisa" original, criminal law scholars consciously think professional: if Da Finch late for hundreds of years in China, may the human being has no this epoch-making works. As an openly gay, he may be regarded as the dregs of society and rogue criminals in prison. 

More than a hundred years ago, a news reporter asked a Vienna famous doctor: "father lives off suffering from sexually transmitted diseases, mother suffering from advanced lung disease, a child early war, a child is disabled, and a child is punished pneumonia. My mother was pregnant, how to do?" "With the fetus." The doctor replies. The reporter told the doctor: "you have just killed Beethoven." 

The above indicates the author should not be understood as the author of any nature criticism of Pan moral society itself. Pan moralism social may also have a positive sense of social structure. This is not the criminal subject, criminal law is also not to be able to answer questions. The author's meaning is, criminal law should be how to prevent the Ao pan moral cognition or may impact for the criminal law theory and practice of the people, and points out that this effect may sometimes be task and function of constitution and legal system country and criminal law itself is not consistent. The moral law scholars is non sense for the judicial practice harmful. Because, the purpose of criminal law itself is the establishment of a separate judgment system and standard in the social morality or a difference in. With the help of moral judgment of logical form, not only against the purpose of norms, and the same also deny law justice itself. The results can only be weakened on the order of law theory itself. 

The theory of social harm of Pan moral interpretation and enforcement of criminal law opened convenient ways, because the harm to the society without any transition but with a kind of moral evaluation, which provides a theoretical basis for criminal law fully pan moral intervention. And our criminal law scholars in the theoretical study, often so to speak with justice and give oneself over to blind emotions. For the crimes, any man can be filled with righteous indignation, however, nature of our legal workers decided, only we can't. We should rationally analysis and in the face of this phenomenon, and make a rational conclusion. This is not only because of our criminal law scholars moral consciousness is not higher than any others, but because the national behavior can only follow a rational track, the theory of criminal law can not be used to replace the standard moral judgment or doped judgment. We should not forget, we just each sentence with, may be contrary to the principle of legality and the practice of th theory according to, can even become misleading legislation: Provisions on serious criminal in self-defence to behavior person died of wounds shall not bear criminal responsibility of new criminal law, the obvious to reflect this point: this stipulation not only from the general principle of justifiable defense, please think carefully, we Is it right? Also in support of the dictatorship? Take responsibility for it, may only is our criminal law scholars. 

The social function of the criminal law is limited by the penalty, we are not up to the world, more do not create millions of Lei Feng; even in crime control, we still have a long way to go: Theory and practice. Our criminal law scholars more than all, destroy the bourgeois theory of task, and will not transform heaven and earth of our criminal law scholars, on the basis of legal system of our society more effective, more accurate, more scientifically provide as accurate as possible and actual operation of the theoretical foundation and basis for improving and implementing the principle of legality, protection of every the public interests of the people, to control crime and criminal legislation and perfect, is our far from complete homework before we finish with scientific spirit should be job. 

Eight 

The punishment is the state may cause damage to the civil rights and interests of the most intense way, may produce conflict is the individual and society is the most serious consequences. Therefore, the criminal law the most acutely in a society reflects the relation between the state and the citizens, as well as the reality of the social values and social ills from itself to a sense of responsibility and attitude. In this regard, Yesai G is a very apt words: "criminal law is in some sense reflects our culture's most loyal and show our love predominant mental state." 

We this time today, and past generations in the values and spirit have undergone great changes. If after the accident Chinese maintain this trend in the social and economic development, we have reason to be optimistic. All this, from the social point of view of science, from the discussion of truth standard to today, many theoretical and academic field has made outstanding contributions. And the development of criminal law is still very unsatisfactory. We are always behind the society, an enlivening the economy, play the market in the textbook of criminal law crime and related discussion to act with confusion, inconsistent rewrite. All of this, only by our criminal law to become a has strict internal logic norm theory to change, not by the publication of astronomical research "results" to solve. Beccaria the tens of thousands of a booklet, affecting many criminal law scholars all over the world. As in today's Chinese, he Is it right? Even on teaching assistants have a problem? 

Whether it is "law of naive" criticism "criminal law first" are our understanding, theory and the requirements of the times and development are not consistent with some kind of crisis signal, it should cause enough attention. Today China law, though far from perfect, but in many martyrs and encounters the blood or life youth at the expense of. Our criminal law scholars have responsibility for science and theory to improve the rule of law to do their job. We can not ignore the pace of development Chinese today and the awakening of the spirit, cannot ignore more new market economy for the criminal law order, also for our criminal law scholars put forward new, higher requirements. Every word in our study, not only to meet the principle of law, not only to follow the norms of the basic principles of science, more not to deviate from the country under the rule of law. Discard the false, every sentence to say from our theoretical research in the hands. We should try to make the research of this field and keep up with the times, reflects the death overcome feelings of inferiority and self-esteem, do not understand the school, there is a world of mind in the face. Not for zhenguowei, not to show our superiority, but in order to make the criminal law theory better, we are more efficient for a gradually forming China in criminal legislation and judicial practice service. 

The criminal law scholars of young, can stand on solid ground to write three hundred thousand words, to solve a normative theory of the problem, so that the next ten years or even decades peers can find convincing conclusion, in this book in the judicial practice can be directly invoked as recognized or established according to the judgment, the legislature because logic and the applicability of the theory (not because the author's social status or title) into the logic of the system in legislation. This is a criminal law scholars and meet the highest glory. If we do not understand, we should first of all learning, learning, learning. In the theory of criminal law, there are many theoretical problems, is nearly a hundred years of national criminal law experts work together is not the basic solution. The research of criminal law and in any field of science to achieve some results, need to work hard and stand on solid ground. China in the circles of criminal law, "head on" criticism is correct, the development of theory of criminal law is far from the end. In some places, perhaps we have not started; have some place to feel may be because, we simply are not aware of, this is a big problem. 

Chinese has many outstanding scholars, but the theory China criminal law has faced with the reconstruction of many aspects of idea, method and content. Our theory of criminal law, should be on our time and the people of this age show enough self-awareness and social responsibility.