Statutory Crime Theory And Practice

The criminal human representative figures of the school of Garofalo fromcriminology angle of criminal law, will focus on moral abnormality in the realperpetrator, namely natural crime, and then according to whether having moralabnormal presents natural crime,statutory crime."The science of criminal law is the most accurate law....... Vague criminal lawis tantamount to deny the principle of prescribed punishment and negative criminallaw value." But in our country criminal law educational world about statutory crimeunderstanding is ambiguous, the theory of criminal law is that the statutory crimeequivalent administrative offense, misinterpretation of statutory crime andadministrative offense relationship. In fact, the administrative offense is frompolice offense, the birthplace of Germany has the full implementation ofdecriminalization, which reflects our country criminal law theory research seriouslyinsufficient,need to make the theory of statutory crime clear from the bottom. Withthe development of society and economy, the statutory crime proliferation is anindisputable fact, some scholars have put forward we have entered the era ofstatutory crime. The statutory crime has volatility, so the criminalization anddecriminalization are from the statutory crime beginning from the history of criminallegislation,; because the statutory crime is the violation of administrative law andcriminal law norm dual illegality, easy to cause the statutory crime prepositiveadministrative law and criminal law norms of its constituents and the elementsspecified is inconsistent, which caused legal problems; it is due to the statutory crimeemergence and proliferation, illegal consciousness in the theory of crime has experienced the necessary evolution process and the dispute from the element ofintent to responsibility. So the research of statutory crime theory and practice isimportant to perfect our country's criminal theory,criminal legislation and criminaljustice.This paper consists of introduction, text and conclusion. The introductiondescribed that the statutory crime proliferation caused the problem consciousness,research significance and research present situation in our country, introduced theresearch perspective and methods, innovation and insufficiency. There are fivechapters.The first chapter: the statutory crime theory. This chapter is the basic theory ofstatutory crime, is divided into four sections. The first section and the second sectionintroduce the origin of statutory crime and the relation between statutory crime andnatural crime. The statutory crime's historical origin is the prohibited "evil" inancient Rome law, the prohibited crime in the countries of Anglo-American law, thebackground is human school's criticism against the criminal law theory of criminalclassical school, Garofalo, the representative figures of the human school creativelyput forward the concept of natural crime and statutory crime from the criminologyangle, because criminal classical school theory that crime is against the lawprohibited cannot effectively cope with recidivism, recidivism and juvenile offendersrising. Natural crime violated the mercy and integrity of the two basic altruisticemotional crime, statutory crime violated the prohibited acts, the two boundaries iswhether moral abnormality. As a result of natural crime and statutory crimedistinction is relative, therefore exist between the two mutual transformation, crosseach other, mutually inclusive relations. The third section describes the concept andcharacteristics of statutory crime. According to scholars concept of statutory crimeconcept, the author puts forward which harmed or threatened legal interest but noviolation of ethics is statutory crime, but as a result of the development of statutorycrime, the modern sense of the statutory crime and natural crime distinguishingstandard is whether dual illegality and the weaker anti ethics. This section alsoelaborates the statutory crime has dual illegality, greater volatility, strong purpose,weak anti ethics, professional, high concealment. The fourth section describes thestatutory crime criminal law value. On the statutory crime criminal law value,meaning distinguish value between statutory crime and natural crime, scholars have dispute. The author proposed, because of statutory crime appearing, promote strictliability, corporate crime, illegal consciousness of the generation, development andperfect in the theory of criminal law; in criminal legislation, from the legislation oftransformation to a dual-track system, realize the criminal legislation socialadaptability and stability, criminalization, decriminalization are from the statutorycrime, promoted the scientific evolution of criminal legislation, many additionalstatutory crime created, criminal legislation's dominant from natural crime led tothe statutory crime; in criminal justice, natural crime, statutory crime in ourproportion reciprocal changes appear, these are reflected to a certain extent the studyvalue of statutory crime.The second chapter: the statutory crime and administrative offense. This is thekey chapter of this dissertation, is divided into four sections. The first sectionlelaborated the relation between statutory crime and administrative offense, putforward to walk out of equal error between statutory crime and administrativeoffense. Although the academic circle of legal crime and administrative offenserelationship exists between "the same" and "different" contend for, but "equal" is theauthority of Chinese criminal law theory. Based on the theory and legislation ofadministrative crime history research and comparative research, the author analyzesthat this is the distortion of legal crime and administrative offense."Administrativeoffense" concepts derived from the mainland legal system country "contravention",in the "administrative offense" birthplace of Germany in the middle of the twentiethCentury because of criminal policy reasons from "penal code" separated, therebyforming the "administrative crime" and "criminal" of the corresponding concepts,and contributed to the administrative criminal law production and development of. InGermany, Japan, China Taiwan, China Macao administrative crime theory andlegislation, can be summed up the administration of three different connotations,including:(1) belonging to the administrative illegal nature of administrative illegalbehavior, which is mainly reflected in the German violation behavior;(2)existingcriminal law the nature of the criminal behavior, and the administrative law nature ofthe administrative illegal behavior, which is mainly embodied in the Chinese law ofMacao" in a minor breach;(3) the nature of the administrative criminal law crime,this is mainly the Japanese criminal law scholars, China Taiwan scholars. Theadministrative crime and no objection belongs to the criminal nature of the statutory offender is not equal. The theory of criminal law in China is the statutory crime andadministrative crime equivalent, on one hand, because in our law system, criminallaw and administrative law does not exist between the continental law systemcountries" criminal law" in the criminal law and administrative law between "administrative offense" problem, therefore, in breach of administrative legal grounds,the statutory crime and administrative crime equivalent; on the other hand, is by theJapanese criminal law theory's influence, but even in Japan, on the connotation ofadministrative crime and there are also differences, statutory crime andadministrative offense with only one view. Section second of the overall legal crimeand administrative crime difference. Through comparative research and historicalinvestigation of discernible knowledge, statutory crime and administrative crime inhistory, the legal origin, nature, connotation and extension, the general rules of thecriminal law the guidance function are different. Comprehensive analysis of sectionthird statutory crime and administrative crime commonness as well as both inprocedure, evidence, legislation articulation problems. The statutory crime andadministrative crime between which there are differences, and the common (bothlegal interest infringement, violation of administrative law and are subject to the nolaw expressly prohibiting the penalty principle's control), the relationship betweenthe two requirements in the legal system, the two kinds of illegal behavior and itsmechanism of organic ground joins rise. Through the empirical study shows, inrecent years, all kinds of malignant events emerge in an endless stream, investigateits reason, is on a variety of professional legal crime attack strength, not realizing theguilty must be punished. The deep reason is no solution to the legal crime andadministrative crime articulation problems. The statutory crime begins withadministrative illegality, statutory crime investigation in administrative lawenforcement of administrative enforcement of law as the premise, withadministrative law-enforcement organs, criminal justice authorities accepted thesuspected criminal cases for the condition. Therefore, this paper refers to the legalcrime and administrative crime articulation refers to the linkage betweenadministrative enforcement and criminal justice. To truly realize the administrativelaw enforcement and criminal justice smooth engagement, we should improve thecoordination mechanism, which includes procedure, evidence and legislation fromthree aspects of the interface. Program interface is mainly reflected in the transfer thesuspected criminal case, the definition of crime and non-crime. Evidence of convergence is mainly reflected in the administrative law enforcement evidence andcriminal judicial evidence transformation method, including:(1) physical evidencefor strong objectivity, as long as the judicial staff review form to;(2) the subjectiveevidence (but the appraisal conclusion except), should be after the judicial staff tocollect. Legislation engagement is mainly reflected in the administrative penalty andcriminal punishment standard connection and concurrent articulation. Section fourthpresents comprehensive analysis of legal crime legislation should carry out specificadvice. Famous German scholar, has pointed out:" punishment like a two-edgedsword, use not when, national and individual two victim". The restraining criminallegislation is rooted in penalty double-edged nature of coping. It includes the crimeof criminal legislation and penalty modesty modesty. The control principle ofrestraining criminal law, the author has analyzed our country on the crime andpenalty structure are worth reviewing. In the criminal context, only unilateral "crime", not timely" decriminalization", led to the criminal hypertrophy peep; addingnew crimes less scrupulous, did not consider and existing charge inclusion orconflict; criminal law and judicial interpretation of the relevant provisions are tooharsh, did not consider and civil, administrative legal connection problem. In thestructure of penalty, the death penalty is still too much; free punishment and criminalpenalties apply scale is not harmonious, Non-Imprisoned punishment ratio is nothigh; the supplementary punishment of deprivation of political rights in the range istoo wide. For this, the author puts forward the legal crime, legislation, should adhereto the principle of restraining criminal law legislation, adhere to the appropriateintervention, limit the scope of punishment, established in accordance withprinciples, constructing a reasonable structure of legal crime penalty, realizingeffective control and promoting social and economic development of the united.The third chapter:the statutory crime and count. This chapter is divided intofour sections. The first section and the third section from the perspective of judicialpractice in different counts of statutory crime legal problems. The statutory crimehas dual illegality, it is easy to cause the prepositive administrative law and criminallaw norms of legal crime constitution important document and elements specified isinconsistent, which caused legal problems. According to the different counts,statutory crime criminal law norms can be divided into two types: blank descriptionof crime criminal law and regulations stated blank counts complete criminal law.Accordingly, the legal commit prepositive administrative legal norms and depend on the criminal law norms, in accordance with the counts of different can distinguishbetween two kinds of relations, namely the prepositive administrative legal norms onthe blank criminal law supplement and the complete criminal attachment. Prepositiveadministrative law changes, added blank prepositive administrative legal norms ofcriminal law should be applied from the old and the principle of lighter punishment;criminal law depend on completely prepositive administrative legal norms applicablerules of interpretation of criminal law, see attachment a counts and counts ofcriminal law. See Synonyms at complete prepositive administrative legal norms aresubjective explanation, application of the criminal law objectivity in interpretationrules. Section fourth of the two legal systems of legal crime through the comparisonon the legislation, perfecting the legal crime legislation. In the continental lawsystem and Anglo-American law system countries, areas of legal crime legislation,adopt double-track, to reconcile the constancy of natural crime and mutability of thestatutory offender is contradictory, realize the criminal legislation of the stability andsocial adaptability; and the establishment of dangerous criminal negligence or strictliability, in order to deal with the harm public security crime, harm public healthcrime need, realize criminal law on the individual legal interests and public safetyprotection. In the light of our country the legal crime legislation monorail systemdefects, it is necessary to take the legal crime legislation system; and the legalcommit crime from" to a harmful result as the center" to" the duty of care as thecenter " the transformation, the general rules of the criminal law provisions of theaddition of involuntary dangerous crime, to maintain the general rules of the criminallaw and the special coordination.The fourth chapter:the statutory crime and illegal consciousness. This chapter isdivided into three sections. By the first quarter of the illegal consciousness ofhistorical research, a comprehensive introduction to the illegal consciousnessdevelopment, evolution of. Illegal consciousness is generally from the opposite errorof prohibition, experienced" ignorance of the law does not know the law is no excuse,no exception to the principle of prohibition, distinguish errors and constitutiveelements of error, error into the prohibited deliberately, forbidding wrong as thefactors of liability " development, evolution process. From the legislative, judicial,1810" French penal code" set " ignorance of the law is no excuse" principle, theUnited States of America1957blue Potter case reflects the ignorance of the law isno exception to the principle of. In1871," the German penal code" only provides elements of error, the1952federal court criminal sentencing commission ruling onMarch18,1952that the illegal consciousness as the factors of liability. In1975," thefederal criminal code prohibits" increases the error terms, to distinguish theprohibition mistake and constitutive elements of error, in the prohibition mistake,distinguish the inevitable disable error and can avoid forbidden error. Section secondelaborates the relationship between intentional and illegal consciousness, putforward to want to walk out the misunderstanding of deliberately. In the intentionaland illegal consciousness relationship theory, there have always been" exclusion","need to say"," independent"," criminal law of our country to need to say" to dealwith illegal consciousness and intentional relations, it is long-term since the criminallaw theory of errors. Therefore, the author puts forward should walk out of deliberateerrors, profits from the mainland legal system theory of criminal law, the illegalconsciousness as a kind of independent subjective factors of liability, deliberatelyexcluding illegal consciousness, just to the fact of behavior understanding. The thirdfestival of statutory crime intentionally comprehensive and illegal consciousnessrelations. The legal commit intentional and illegal consciousness relations, there hasalways been "the illegal consciousness do not say" and" illegal consciousness needto say" contend for, to say and to distinguish " say" and" responsibility". I agree withthe" responsibility", namely the legal commit intentionally, not including the illegalconsciousness, law consciousness is the responsibility of the elements, but theresponsibility to distinguish two kinds of circumstances, has justified reasons (cannot avoid the prohibition mistake), can hinder sin shall not be penalized, withoutjustifiable reasons (to avoid ban error), can not be hindered sin but can be mitigatedpunishment. In addition, this section also study of statutory crime illegalconsciousness and illegality fault and the relationship between statutory crimeprohibition mistake can avoid the judgement standard.The fifth Chapter:the statutory crime and character of crime. This chapter isdivided into three sections. The first section describes the legal crime and intentionalcriminal cessation pattern relationship. Intentional criminal cessation patternincluding the accomplished crime, preparation for a crime, criminal attempt anddiscontinuance of crime. The author puts forward the legal commit intentionalcrimes, and to stop the form relation is the statutory crime, crime punishment,according to the incremental risk theory, the legal commit preparation andsuspension principle can not be punished and attempted behavioral choice of punishment. Section second describes the statutory crime and joint crime ofmorphological relations. First of all, this section describes the statutory crime andjoint crime human relations. Criminal law in the continental law system will becommon crime divided into principal and (narrow) accomplice, how to distinguish,the criminal law theory subjective theory, objective theory and behavior controltheory argument. The author analyzed the endorsing behavioral dominance theoryreasons: either objective or subjective theory theory, are not appropriate in theprincipal offender and accomplice, and behavior control theory comprehensiveobjective theory and subjective theory, adhere to the unity of the objective andsubjective. As the narrow accomplice accomplice in criminal theory, and therelationship, exists accomplice dependency and accomplice independency ofopposites. Because of the recognition of criminal behavior control theory, thencorresponding to only be accomplice dependency theory, and the criminal law of ourcountry is taken from the theory of accomplice. Statutory crime joint principaloffenders identified, with natural crime is different, in the body (including corporatecrime crime unit). In the legal commit narrow accomplice cognizance, also need topersist accomplice from the said properties. Secondly, this section describes thestatutory crime and joint crime constitution relationship. Common crime should beto meet in one and the same constitution of crime as a premise? The existence of thiscrime in criminal law theory common theory and the behavioral common opposition.The author analyzed the aligned portion of common crime that reason: because thataccords with Chinese criminal law and the principle of subject and object consistent,and can be reasonably identified the reality of accomplice phenomenon. Accordingto the said, the statutory crime crime constitution of common recognition, as long asmore than two people on the part of crime is common behavior and commonintentional (with coincident properties), set up joint crime; in the establishment ofjoint crimes, and were convicted of possibility. Section third elaborates on therelationship between the statutory committed and quantity of crime. AlthoughChina's criminal law theory of a crime of a variety of different categories reallybelong to only Implicated in the quantity of crime study of the Criminal Law,Lapping of Legal Provisions guilty and Imaginative Joinder of three. Real competingis a substantial number of offenses, mainly to study the problem of graft, andtherefore it is not the object of study of this section. Accordingly, this section guiltyof three quantity of crime Implicated, Imaginative Joinder and Lapping of Legal Provisions for the study and analysis of the definition and punishment of statutorycommitted in the above-mentioned quantity of crime. First, this section shall apply toImplicated from a heavy off principle. Statutory commit is characterized by strongprofessional, usually acts by means of some method, these methods acts of criminallaw will be independently specified as crime, to use these methods, you may set upImplicated. Implicated in the statutory committed the same from heavy off principle.Second, this section states Imaginative Joinder shall apply to the felony principle,this principle applies equally the Statutory committed the Imaginative Joinder,China's criminal law and judicial interpretation of the explicit provisions. Again, thissection describes the Lapping of Legal Provisions guilty included a specialrelationship between the law, including the special relationship, complementarity,and absorption relations; discussed Lapping of Legal Provisions guilty of statutorytransgressions law application principles, including:(committed1) Specialrelationship Lapping of Legal Provisions applicable special law superior to commonlaw-based, heavy method is better than light method, supplemented by the principle,(2) to supplement relations Lapping of Legal Provisions guilty of the application ofthe principle of weight method is better than light law (3) absorption relationshipLapping of Legal Provisions committed to apply the absorption method is superior tothe principle of the method is absorbed.