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On The Perfection Of The Structure Of Constitution Of Crime

Posted on:2011-04-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:1116330332458499Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
If we compare the criminal theory to a dazzling crown, then the constitutive theory of crime is undoubtedly the most eye‐catching part of it. In China, the constitutive theory of crime, which is of great significance to the theory of criminal liability and penalties, is the core of the theory of crime. Therefore, an intensive study on the constitutive theory of crime plays an important role in promoting our criminal study to a higher level.This article, through analysis on the attribute of the constitution of crime, argues that the constitutive theory of crime is a theory established by the means of inducing and classifying the conditions of crime under the criminal law and it is a theoretical analysis tool to effectively connect the norms of criminal law with specific cases. Though the theory system of constitution of crime itself is reasonable, it is of great deficiency to conclude that the constitution of crime consists of four elements. Thus, the author argues that there's a trend to perfect the existing structure of constitutive theory of crime, that is, to establish a two‐element theory including objective element and subjective element.This paper is consisting of seven parts.The Introduction describes several viewpoints posed by the scholars of criminal law in the future development of theory system of constitution of crime and therein provides definitions for the theory of reconstruction as well as that of perfection. According to the current studies, theory of reconstruction refers to the reconstruction of Chinese constitutive theory of crime based on the three‐hierarchy theory of crime, which is the typical German and Japanese model, while theory of perfection means to improve and perfect the existing four‐element theory.Chapter One is the overview of current debate over the constitution of crime. Firstly, this chapter reviews the shaping and development of Chinese four‐element theory and that of German and Japanese three‐hierarchy theory, providing a foundation for fully understanding the theory of reconstruction and perfection. Then, it sorts out the viewpoints and doctrines of reconstruction theory. This paper divides the criminal law scholars'proposals into two models: one is radical reconstruction advocating completely transforming the theory structure and taking in other countries'practice; the other is reconstruction by modifying with reference to foreign model. Meanwhile, it also reduces the theory of perfection into three kinds of viewpoints, which includes increasing or decreasing the elements of existing constitution of crime, sorting the elements of constitution of crime and seeking a rationality of the gerenallly accepted theory. Afterwards, it makes an analysis and evaluation on the above‐mentioned and points out that the debate over the theory model of constitution of crime in the present stage of development of rule of law is a reflection of dispute over modernization model and localization model. According to the principle of"path dependence", only through analyzing and accurately evaluating of the characteristics and personality of existing theory, can we get the rational answer. Thereby, this article puts forward a means to improve the Chinese constitutive theory of crime, which is to make clear what constitution of crime is at first. After that, we can propose a correct direction towards which our constitutive theory of crime should develop.Chapter Two is about the composition of constitution of crime. The question of what constitution of crime is equals to what the composition of constitution of crime is. As regard to the composition of constitution of crime, this paper considers that we should adopt"doctrine of theory"to analyze the composition of constitution of crime, which is a theory established by the means of inducing and classifying the conditions of crime under the criminal law serving as a theoretical analysis tool to effectively connect the norms of criminal law with specific cases. Therefore, the main function of constitutive theory of crime should be to determine whether a crime is established. Since the relationship between behavioral theory and theory of crime determines the structure of constitutive theory of crime, the theory of constitution of crime should prioritize the formal rationality and properly address the requirements of substantive rationality.Chapter Three is comparison and evaluation of the two kinds of theories of constitution of crime. Considering that different countries share a common understanding of the evaluative feature of crime, there is no principle difference in one of the elements of crime, namely, the facts of crime. However, significant difference exists in the features of the system. Thus, comparison and evaluation of the constitutive theory of crime should be conducted centering on the causes and the characteristic of various theories. Take the German and Japanese model for example, due to the impact of super rule in judicial practice, doctrine of perpetrator‐oriented criminal law and liquidation thought of legal positivism, this model is characterized by separation of behavioral theory and theory of crime. On the contrary, the Chinese theory of constitution of crime reflects a unity of behavioral theory and theory of crime. From this aspect, the cause negating crime is parallel with the constitutive theory of crime. Based on the above analysis, this paper concludes that the theory of reconstruction interprets the German and Japanese theory model as hierarchical progressive theory while criticizing the Chinese theory as the complanation. However, such understanding does not accord with the modes of thinking of these two theories. The real cause of the difference lies in the differences in understanding the relationship between behavioral theory and theory of crime. Therefore, this paper proposes that the Chinese constitutive theory of crime needs no reconstruction but improvement and perfection.Chapter Four is on the thinking of perfecting the Chinese theory of constitution of crime. Through analysis on the object and subject of crime, this paper argues that there's disadvantage both in theory and practice by deeming the object of crime as element of crime and so is true to the subject of crime. Therefore, to perfect the Chinese theory on constitution of crime, we should exclude these two elements from two‐element theory including objective and subjective elements. Meanwhile, this article also propose a re‐understanding of object of crime, evaluating the subject of crime as risk and placing it under the scope of criminal liability.Chapter Five is mechanism remedying the formalization of the basis for a conviction. Due to the characteristic of strict formal rationality, the Chinese theory unavoidably tends to formalization in determining a conviction, which means there exists non‐equilibrium between the formalization of the basis for a conviction and specific case. Thus, how to solve the formalization issue has become an indispensible part in perfecting the Chinese constitutive theory of crime. From the prospective of dispute over transferring the anticipated possibility into the criminal law theory, this paper suggests that the mechanism for remedying the formalization of the basis for a conviction should be established through re‐interpreting related terms in Chinese criminal law, namely giving substantive explanation to the term"crime"and reasonably using the causes negating crime.The Conclusion reiterates the viewpoint of this article.
Keywords/Search Tags:theory of constitution of crime, system, structure, perfection
PDF Full Text Request
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