Origin of the theory of crime constitution in our country

[Abstract]: whether in history or at present, the criminal law theory about their crimes are crimes that constitute a crime. These theories, according to the national character, historical background, cultural tradition, legal system and so different. The dissertation is composed of the theory of crime, is one of them, its theoretical basis, is the concept by the crime constitution condition for the center to prove the crime, a theory as the basis to construct the system of crime theory. The constitution of a crime, is composed of the elements interrelated, interaction with the specific nature of the crime and social harm of an organic whole. Constitution of crime in China is the organic unity of body, a crime of all of the necessary subjective element and the objective element. China's criminal system theory is in accordance with the characteristics of the crime has China Marx ideology founded the theory, China's "criminal law" adopts the theory of criminal law of the former Soviet Union, the object of crime, objective aspect of crime, subject of crime, subjective aspect of the crime of four elements that constitute a crime. However, with the deepening of the research, many experts and scholars have put forward various views on elements of the four crimes, and appeared the difference of opinion, think the object of crime is not appropriate elements. Therefore, China's current criminal constitution theory adopted in German and Japanese criminal theory of crime, set up the three requisites to constitute a crime, that is composed of objective elements of crime, subject of crime and crime subjective elements of the three constitutive elements of a crime. The criminal law point of view than the former Soviet Union's criminal law theory of constitution of crime science and more reasonable. This is our country since the1979A great year of reform "criminal law" after the promulgation of the constitution of crime, the three elements into a new direction and a new subject in theory of criminal law, worthy of our in-depth study and learning.

[Key words]: the object of crime, objective aspect of crime, subject of crime, subjective aspect of crime. 

       Introduction

The historical origin of "elements" can be traced back to the earliest13Century. After that the historical documentsConstare de delicto(Criminal confirmation) concept, it is a medieval Italy asking a concept used in the procedure. Since then, the French criminal law expertsKleinFirst of allCorpus delictiTranslated into GermanTatbestandThat is, elements, but it was still only a procedural law significance. Until19At the beginning of the century, the famous German criminal law expertsFeuerbachIt explicitly put into criminal law constitutes a crime, make a substantive law concept. About the historical development of the concept of constitution, the German Bruns and Hal had done special research. Howl at1933Years of writing "Corpus delictiPoints out that the theory "in the constitution, the concept can be traced back to the earliest13Century. In medieval Italy, inquisitorial proceedings, the court only in the general question existing crime (to be confirmedConstare de deticto), to specific suspects for questioning. Later, at about1581Years, fromConstarede delictoA word meaningCorpus delicti(crime). This concept was later spread to Germany, applicable to the common law era, its meaning is used to prove the existence of the objective facts of a crime.1796Years, the German scholar carat because first of allCorpus delictiTranslated into GermanTatbestandThat is, elements, but it was still only a procedural law significance. Until19At the beginning of the century, Feuerbach is a famous German classical scholar was clearly the constitutive elements of the crime of criminal law as a concept to use. Can say, the crime constitution theory is founded by the bourgeoisie, the first is from the German criminal classical school scholars created, it is the product of judicial system is the bourgeoisie against illegal arbitrary, is a concrete manifestation of the bourgeois legal principle of crime and punishment in the conviction.

In the criminal law experts in Germany, made the greatest contribution to the crime constitution theory is Becklin, he put the special constitutive requirements concept, theory of criminal law, to upgrade them to the general rules of the criminal law of the crime concept, make it linked to illegal, liability issues, together constitute the crime concept, and through elements of the organic concept theory between criminal law and the criminal law together, set up a form centered at the crime legal system. The early bourgeois criminal constitution theory to a new stage, which laid a foundation for the modern bourgeois criminal constitution theory.

But in the1915Years, another German criminal law scholar Meyer published his famous "general provisions of criminal law", is a modification of Bellinger's theoretical system of constitution of crime, the crime concept changed to "crime is in line with the constitution, law and the liability of the event", established the "illegal elements - - duty" criminal system. This system has been recognized by the most common in Germany and japan. Until today, many bourgeois scholars still adopts the concept of crime of Meyer, think "is in line with the elements of the crime, illegal and responsible behavior." In this system, the constitution of crime, but the crime was the first and most important condition, all conditions rather than crime.

Modern continental law constitution theory is20At the beginning of the century, elements from the procedural law into the substantive criminal law, from the objective to the subjective structure development structure, form a comprehensive constitutive theory, become the crime theory system. Criminal law of the Soviet Union experts in critical reference based on the elements of the criminal law theory in continental law system, and established the theory constitute the unique crime, the crime constitution theory is characterized by: give crime to the substantive content of social politics, construction of crime based on the harm to society constitutes the crime constitution, as a reflection of social harm in nature, the criminal law theory in continental legal system as one of the conditions of crime constitution theory, into the Soviet Union criminal law crime crime constitution theory overall conditions, formed the theory constitute the integrity of the crime.

China is a civil law country, "crime constitution and the system of crime theory" is adopted in the former Soviet Union. The former Soviet Union crime constitution theory in China is a comprehensive study of the Soviet Union during the early days of liberation in the upsurge of china. In the initial period, the former Soviet Union constitutes a theory of crime is almost wholly intact to directly into the theory Chinese crime, although increased with some Chinese situation, but in50Time, change any substantive not. Here it should be pointed out that, in Germany19The criminal law experts Bellinger, Meyer's criminal theory system establishment, Russia is in the process of the proletarian revolution, not influenced by Bellinger, Meyer theory. The victory of the October revolution in Russia, the criminal law theory of bourgeois basically belongs to19Century that the early bourgeois crime constitution theory, it is still the sum of constitutive elements of crime as the crime of subjective and objective factors. After the victory of the October revolution, the Soviet Union was formed in the criminal law absorbing critically bourgeois criminal theory, founded his own theory of constitution of crime. In this theory, it remains19Century, German bourgeois constitutive elements of a crime is the sum of the establishment of criminal objective and subjective elements of view, only increased the content of social harm.

In our country60Time to70In the following, this set of criminal Soviet constitution theory criticism and negation. Since the Third Plenary Session of the eleven, it has made great progress in the theory of crime constitution, a breakthrough in the content and the system, but also increased the number of closely integrated with the actual situation Chinese new content. But this is a set of theoretical system and the main theoretical perspectives and no fundamental change. In this case, already can not adapt to China's reform and opening up and modernization of the new requirements and improve the socialist legal system. The system of constitution of crime in continental law system as the representative of the former Soviet Union and China, is composed of the object of crime, objective aspect of crime, subject of crime, subjective aspect of crime. Because of this structure is enclosed, self completion logic structure elements, and thus are called "closed" system of constitution of crime. In practice, there are many criminal law scholars put forward to carry out major reforms of China's criminal theory system, a new system theory to build with China characteristics of the crime. 1. Even some scholars pointed out: "the reason we reform the criminal constitution theory, in addition to its behind the times, outdated, is mainly due to the theory itself has many unscientific place, can not adapt to the need to struggle in the new situation of the same crime." Therefore, in this thesis, the three elements will be on the crime and the crime constitution of the four elements of a discourse, to illustrate the current criminal law of our country adopts the Germany and Japanese criminal law theory of the three elements that constitute a crime, the system is scientific, reasonable, can be more accurate to define the crime criminal law.

                Case introduction and theoretical basis

In our country criminal law theory of crime which founded by the former Soviet Union in one of the four elements, four elements most jurists dispute is the object of the crime is incorporated into the elements of a crime? Our country criminal law educational circles say thinks generally, the object of crime refers to the criminal law of our country and the protection for crimes against socialist social relations. In the criminal law provisions provisions are summarized in the concept of crime, enumerates all aspects of social relations protected by criminal law provisions, regulates a specific criminal violations of social relations. We generally think that the object of the crime is a necessary element of constitution of crime, any crime is crime object. The criminal social harmfulness, first is decided by the infringement behavior of the object of the crime, a behavior does not infringe upon any object, does not infringe upon any social relations, means no harm to society, also cannot constitute a crime. However, with the study of the "criminal law" and the relevant theory of criminal law scholars in our country deeply, and "criminal law" system and legal theory is more and more mature and perfect, many scholars have raised objections to the traditional view that the constitutive elements of the crime, the subject of crime, objective aspect of crime and crime subjective aspect of this three elements can be the object of the crime is not necessary, the crime constitution. The emergence of the "new three stratum theory", namely the three requisites to constitute a crime, that constitute the criminal law theory of the crime is more scientific, more accurate. On this view, you can go through the analysis of this case and the:

② [case]: Zhao to sell dead cattle profit, buy gas rodenticide from this village shops, fairs, sprinkled on the leaves or steamed block, will poison successively7Put on the roadside, field, vegetable field, poisoned the cattle7First, the poison has55Put on a cattle troughs, poisoned the cattle62First, the value of99880Element. Zhao resold the dead beef, profiting from the.

For this case, if we use the traditional four requisites to constitute a crime in criminal law theory to the analysis of qualitative issues of the case, the case can be seen as the standard, the focus is the object of the crime is obvious. So in this case, the case of qualitative problem, major differences exist in the judicial opinions. The prosecution according to Zhao put in different locations, think Zhao constitute poisoning crime and crime of sabotaging collective production, and the judicial organs that Zhao constitute intentional poisoning. The prosecution and the judicial organs, knowledge of the crime object, led to the qualitative case have different results, thus affecting the case processing. In view of this, improvement in the constitution of crime crime constitution theory is the need of the reality, if you insist on using the Soviet Union's four requisites to constitute a crime structure to judge crime, influence the crime evaluation function, especially play defense function.

     The object of the crime should be as present in the constitutive elements of the crime, and regard it as the standard of crime? In our current crime has four elements theory defects, if properly from Germany and Japan on the constitution of crime in the criminal law or foreign criminal theory system, and the appropriate improvement, construct suitable for China's crime theory system theory, is a pragmatic attitude. All crime is a violation of "criminal law" is the crime, but the "criminal law" itself is not the legal provisions of criminal elements, a concept of four elements is the law constitutes a crime, the criminal object as if the elements, a concept secretly suspected, the crime should not be more accurate, scientific, reasonable.

Factors of object of crime from other elements, rather than their own. "The constitution of crime is the only according to" the criminal responsibility of the former Soviet Union from the traditional proposition of criminal law, once a long time in our country's criminal law theory dominated. China's criminal law that a crime by the former Soviet Union constitute the four elements theory, after many years of practice can be seen, especially in recent years, the proposition of the criticism from all sides. Criticism of the former Soviet Union in the theory of criminal law, the criminal object into the constitution of crime, the crime has lost substantial elements of form and become simple, and thus lost the function of legal standards that crime. Therefore, our present to German and Japanese criminal law theory, namely the three requisites to constitute a crime, the three elements are respectively composed of objective elements of crime, crime subject element, subjective elements of crime, the three elements crime constitution said to that standard of crime is more scientific and reasonable.

     Here, it is necessary to pay attention to, in the constitution of a crime, is also divided into statutory crime and crime (i.e. the reality of constitution of a crime), practice clearly distinguish this point is very important. Statutory crime is a concept in law, is the legal principle of conviction and sentencing, legal basis is the subject of crime of criminal responsibility; but the reality is the crime constitution is the organic whole existence of constitution of crime is the subject of crime, criminal liability according to the objective.

                         The significance of the study

Study on the crime of the criminal law theory, it has important significance for the criminal judicial practice:

1The theory of constitution of crime is the law, principles of conviction and sentencing, to distinguish between crime and non crime provides legal standard, legal standard and the principle of legality. Act in accordance with constitutive elements of crime is the crime, otherwise it will not set up a crime. Different from the concept of crime is, the concept of crime is directly reveal the nature of the crime and the standard attribute and feature of the crime, and illustrates the crime elements, structure and properties. In the criminal law of our country, "criminal law" article13The only clearly defined the general concept of crime, but does not require the general concept of constitution of crime. A specific concept of various crimes in the criminal law, but there is no concept of specific provisions of constitution of crime. According to the "criminal law" article13Stipulates: "all the harm state sovereignty, territorial integrity and security, secession, to subvert the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, infringement of citizens' private property, the violation of civil rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be be subjected to criminal punishment, is a crime, but circumstances are obviously minor and the harm is not great, not deemed a crime." We can learn from this article, crime is harmful to society and the state's behavior, is a kind of in accordance with the law should be punished. Here "in accordance with the law shall be punished in accordance with the general principles of criminal law" refers to the provisions of the crime the general conditions and the specific provisions of criminal law constitutes a crime in special conditions on the behavior of. These Regulations are systematic, theoretical, we call it a crime. "Legally punishable act" is refers to with the element of crime behavior, so we can take the crime is interpreted as: "harm to society, in conformity with the statutory crime behavior." It can be seen, the concept of each specific crime, is a specific concept of crime as the basis, the elements specified by law is an organic whole, and the whole structure and properties of the elements and specific analysis of the subject, object, subjective aspect and objective aspect, thus formed the constitute a crime, the establishment of crime. The right to "criminal law" provisions of the charges on the crime punishment, but also implement the principle of suiting punishment to crime important measure standard and according to the principle of.

2, crime constitution is a kind of theory, a legal concept, but it is the cornerstone of the core theory of criminal law and the criminal law theory system. A series of important act in the "criminal law" in the general and problems, such as self-defense, emergency hedge, preparation for a crime, attempted crime and joint crime, suspend, conviction, sentencing, criminal responsibility, and so on, must take the crime constitution theory as the basis for the analysis and judgment. At the same time, crime constitution is to distinguish between crime and non crime, this crime and other crime, criminal responsibility for crimes provides legal measure.

   3Crime constitution is the objective theory, the subject of crime is criminal responsibility, it is to distinguish crime legal basis weight and light offence, also provide a legal basis for the distinction between one crime and several crimes.

                          Conclusion

The constitution of crime is the cornerstone of the core theory of criminal law and criminal law theory system, plays an important role in "the correct implementation and use of criminal law", can be in the actual application of the correct treatment and distinguish between crime and non crime, one crime and several crimes, the discontinuance of crime, attempted crime, such as criminal law practice. At the same time, in the process of learning "criminal law" in the constitution of crime, and its development history and in-depth study of elements, but also has very important practical significance, can help us in practice more accurately grasp the "criminal law" in the provisions of charges, effectively do to the principle of suiting punishment to crime, not in vain. No longitudinal punish the criminals, to protect our citizens property and personal safety, maintain the social dimension and the nation's territorial integrity.

Reference.

He Bingsong, theory of crime construction system, China legal publishing house,1995Years:245;

The Huang Jingping case, analysis the general principles of criminal law, Renmin University of China press,2000Years10Month:15.