On The Decriminalization Function Of Social Harmfulness

Social harmfulness is the basic concept of traditional criminal law theory.This paper attempts to sort out the traditional concept in detail,give a new connotation,and then carry out the excavation and system construction of the function of social harmfulness decriminalization.In short,the core of the proposition includes the following points:First,how to define the concept of social harmfulness and how to judge the social harmfulness that should be punished in the current criminal law theory.Second,social harmfulness has the function of eliminating crime.Social harmfulness is the basis of value judgment,and criminal illegality is the standard of form judgment.Criminal illegality is the standard evaluation of crime,while social harmfulness is the value evaluation of crime removal.Third,what is the relationship between the system orientation of the function of social harmfulness decriminalization and the concept of crime,the constitution of crime and the cause of criminal obstruction.Fourth,the common performance types of the function of social harmfulness decriminalization.Apart from the introduction and conclusion,this paper consists of six chapters,as follows:The introduction part summarizes the current research situation of the theory of social harmfulness and the theory of decriminalization,and briefly introduces theresearch perspective and research methods of this paper.The first chapter is the carding and reflection of the concept of social harmfulness.From the perspective of etymological research and historical evolution,this paper combs the origin of the concept of social harmfulness in criminal law,clarifies the evolution of the provisions on social harmfulness in criminal legislation of the former Soviet Union,and briefly describes the development of social harmfulness theory in the criminal law history of the former Soviet Union and major European countries,which paves the way for the study of social harmfulness theory.On the political and legal reasons for the introduction and succession of the theory of social harmfulness in China.The second chapter mainly defines the connotation of social harmfulness.China's criminal law takes the social standard as its basic values.Under the guidance of the social standard view of criminal law,social harmfulness refers to the objective damage to the public interest needed to maintain the overall survival and development of society.The core element of social harmfulness is objective damage,which is the logical continuation of objectivism in amending criminal law.Based on the revised objectivism criminal law position,the social harmfulness in criminal law should be objective and should not include subjective elements such as personal danger.Taking the social standard view of criminal law as the value orientation and the objectivism of criminal law as the basic position,this paper demonstrates from the angle of the principle of secondary illegality that social harmfulness will not lead to the arbitrary judgment of crime and punishment,and will not affect the realization of the human rights guarantee function of criminal law,and thus should not be excluded from the annotation of criminal law.The third chapter mainly puts forward the function of decriminalization of social harmfulness.Social harmfulness and criminal illegality are the unity of opposites of content and form,value evaluation and standard evaluation,dynamic evaluation and static evaluation.No matter the inductive logic in criminal legislation or the deductive logic in criminal justice,the evaluation of criminal illegality is not comprehensive.It is precisely because the evaluation of criminal illegality is not comprehensive,sothere is a social harmfulness with criminal illegality but lack of punishment.Therefore,the social harmfulness should be taken as the basis of value judgment in the determination of crime,and then the function of crime elimination should be brought into play.Whether the theory of substantive illegality and punishable illegality in the theory of foreign criminal law,or the "proviso" in the criminal law of our country and the substantiation of constitutive elements,it shows the function of social harmfulness in the principle of crime.The fourth chapter is to demonstrate how to grasp the value judgment basis of social harmfulness as the function of decriminalization.The concept of social harmfulness with damage as its core has its own normative,substantive,criminal law specific attributes,and relatively clear judgment standards,which can play an independent value judgment function in the crime identification system,and should not be abandoned.Since social harmfulness is an infringement of social interests,its essence is a kind of damage.Therefore,the judgment basis of social harmfulness is still damage.At the level of criminal legislation,the damage behavior that enters the field of criminal law evaluation still needs to be judged according to the exhaustion and invalidity rules of the prepositional law,that is to say,only when the types and degrees of punishment of the prepositional law are exhausted,and a certain kind of damage behavior can not be well regulated,it can be identified as having the social harmfulness in criminal law,and then it can be carefully examined and applied.At the level of criminal justice,the determination of crime still needs to judge whether there is the pre-set punishable social harm in criminal legislation according to the prosecution standard and objective damage.If not,it should be decriminalized.The fifth chapter is the system orientation of the decriminalization of social harmfulness.Under the four elements mode,the criminal constitution is the only standard and specification of crime identification,so the social harmfulness should not play its function of crime elimination besides the criminal constitution.On the contrary,it violates the principle of legality,which easily leads to the risk of wanton crime.Social harmfulness should be regarded as the evaluation factor of decriminalization function of the object elements of internal crime.Denying theelements of social harmfulness in the constitution of crime will lead to the uselessness of "proviso".In the system of four elements of crime,the criminal illegality is prior to the judgment of social harmfulness.The criminal illegality is the judgment of entering a crime,while the social harmfulness is the judgment of going to a crime.The function of social harmfulness decriminalization can decriminalize the act of entering the crime circle,and to a certain extent,it corrects the malpractice of excessive criminal law or omnipotence of criminal law.For the conflict of legal value between the prepositional law and the criminal law,the criminal law takes the social harmfulness as its own value judgment basis,and sometimes it can draw a different value judgment conclusion,that is,the function of social harmfulness to eliminate crime.The function of social harmfulness decriminalization and the "proviso" belong to the relationship between the exterior and the interior.The function of social harmfulness decriminalization is the concentrated embodiment of the negative judgment function of the criminal constitution value,which straightens out the conflict between the "proviso" and the criminal constitution.It is precisely because of meeting the function elements of social harmfulness to eliminate crime that the cause of crime rejection does not conform to the constitution of crime,and thus hinders the establishment of crime.The sixth chapter is The concrete manifestation types of the function of social harmfulness decriminalization.For the preparatory offense,the punishment scope of the preparatory offense includes: first,the major interests of the criminal law that the preparatory act is aimed at,such as the national interests,public security,major personal interests,etc.Second,the preparatory behavior itself belongs to the degree of bad and serious circumstances.Third,the cessation of preparatory action is a very accidental objective factor.Preparatory action usually has a very high probability to develop into a subsequent action.Fourth,the intention of the preparatory offender is relatively firm.Although he is forced to stop due to objective reasons,he will still look for another opportunity to continue the unfinished criminal act.In addition to this,the preparatory offender generally does not have punishable social harmfulness and should be decriminalized.For the attempted crime,the attempted crime that thepreparatory behavior implements the type of crime,and the attempted crime that the helping behavior is committing the type of crime,should be punished.In the case of discontinuation of a crime that has not caused damage and has other circumstances of lesser or mitigated punishment,it shall also be decriminalized.In the preparatory stage,the suspension of a crime does not have the possibility of causing harm or the possibility is very small.It is not only unworthy of punishment but also unworthy of conviction.The subordination of abettor and aiding shows that they have the space of crime elimination.The instigator's intention has not been transformed into the attempted instigation,the preparation for instigation and the suspension of instigation before the act.Not all helping behaviors have the social harmfulness that should be punished.The judgment basis of the punishable social harmfulness of helping behavior can be grasped from the aspects of whether there is close and definite joint criminal intention contact,the on-the-spot characteristics of interests infringement,and the close promotion function.For the help behavior that does not have punishable social harmfulness,it should be decriminalized.For the identification of abstract dangerous crime,we should accept the judgment standard of administrative illegal completely in the level of criminal illegality,not make targeted value judgment,but give the negative judgment of value in some cases to the elements of social harmfulness in the object of crime to evaluate.When the standard of administrative illegal is not consistent with the value judgment of criminal law(the judgment of social harmfulness),it should be evaluated as not conforming to the constitution of crime on the grounds of not having the punishable social harmfulness of criminal law,and then decriminalized.