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Act Theory In Criminal Law: Foundation And Tone Of The Crime Establishment Theory

Posted on:2008-01-02Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y NiuFull Text:PDF
GTID:1116360215953585Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Act is not only the most fundamental definition but also the logical starting point in the crime establishment theoretical system of the criminal law. Different kinds of act theories are not the simple definitions of act, but consist of the fundamental ideas and study methods of the criminal law and the study of criminal law. Therefore, act theory is considered as the foundation stone of the crime establishment theory.Acts are always man's acts, so that there are always man's images behind the act theory. Therefore, the act theory doesn't only protect human rights through the limitation of the punishment abuse, reveal the spirit of the society and the age, but also specialize the relationship between law and man in the crime establishment theory. Therefore, act theory is the tone of the crime establishment theory.The crime establishment theory of our country is established on the foundation of the analysis on the inner structure of act or criminal act. All acts consist of four parts: subject, object, subjective aspect and objective aspect. And therefore we construct the theory the constitution of crime, which is also made up of the four parts. This theoretical system emphases the classified description of the so-called criminal acts the law regulates. Through a description of a model of crimes or say , that is, to identify a crime through contrast and select. Such system can include all, but fail to reveal the fundamental differences between criminal acts and common acts. Thus, the content of the system should be prescribed by the positive law. Just because of the dependence of the crime establishment theory on the positive law, the studies on the act theory in our country also depend on the positive law, there are many problems.Therefore, scholars in our country begin to make some fundamental changes in directions of study and methods. But our study on the act theory of the criminal law is still to superficial, which fail to provide a concrete foundation to the study on the crime establishment theory in our country.That why the author puts the definition of act in the background of crime establishment theoretical system and studies the definition of act together with the basic ideas and basic methods, etc. of the crime establishment theory. Because only by this method, can we establish a better crime establishment theory.In the following chapters, the author mainly analyzes the act theory in the crime establishment theory in the main civil law systems raised by the father of the criminal law Feuerbach, by discussing different ideas and methods of criminal laws, law philosophy and philosophy idea, and then come to the conclusion that the are also some deficiencies in the act theory:Since the theories of Feuerbach and Groumann emphasize the description of the positive law, there isn't any definition of act in them, which is insignificant to the application of law. In their theoretical systems, there is no supreme definition or they take the definition of"ascription", which is full of law color, as the supreme definition.But the study of law cannot end within the field of law. The definition of crime shouldn't be applied to law, but to the theory of crime. Therefore we need a fact to take the place of property. The definition of act is in place of ascription means the replace of criminal theory by crime theory, that is, to replace the dependence on the positive law with the law logic.Hegel's idea of law philosophy creates the fundamental position of the definition of act in the criminal law. Hegel firstly makes a clear distinction between the positive law and law. The logical development of law is also the logical development of free will, while the definition of act is a part of that development of free will.Since Hegel's philosophical idea cannot be directly applied to the criminal law, the Hegel criminal law school takes a segment of the whole Hegel's philosophy just in form, which makes it a disadvantage and because of that, people's study of the act theory of criminal law has to turn to the study of the natural act theory.The philosophical method of the natural act theory comes from the influence of the positivism of social science, which is influenced by the positivism of natural science, therefore, it emphasizes only man's natural property and takes man's act as a physical causal process."Do"cannot be united with"not do"in standardization, which causes an up to down fraction in the crime establishment theory built on the philosophy. Although those teleologists saw the partiality of the natural act theory, they failed to turn to the act and the persons who act in the criminal law to those who have social property in reality. Although the man in the teleologism theory is not a part in the natural world, he is partial man who faces the outside world lonely.The social act theory moves forward and clearly revealed man's social property therefore makes man a member of the society and man's act a social act which is related to the society. But social property in fact is regulation, and the social act theory, which emphasizes the definition of act as the true property of its object, fails to explain reasonably. To explain reasonably we must come back to our understanding of man. It's not the actions the laws are dealing with; it's the man who makes the action we are talking about. Therefore we'd better set down to our discussion by understanding man's nature first, that's why man's nature act theory is more and more emphasized. Through the explanation of the act theory, the author makes it clear that he shall take the subjective study of the crime establishment theory as the foundation on which the act theory study is based, and he shall explain the basic idea of man in the criminal law and take this as a key to explanation of the conceptions and the inner regulation of act.Compared with the positive law, criminal law shows more academic feature. Meanwhile, as a social science, it also shares with all other scientific systems the same general characteristics. Therefore, there are three basic concepts in the crime establishment theory, which includes what is crime, how to define crime and what a crime should be. Therefore there are three aims based on the theory: the pursuit of the operation of the law, the pursuit of the simple idea and the pursuit of social just.The property of the idea system decides the property of idea in the system. Therefore we know that there are four fundamental properties of the definition of act: the administrative property in nature, the uncertain property in definition, the organic property in purpose and the correlated property in a system.The act theory which possesses this property is the only definition which may be the logic starting of the crime establishing theoretical system. When a definition becomes the logic starting of a theoretic system, the definition must consist of all the parts in the system. The difference is that the parts are direct and general. The definition of act is a regulation itself and after the extension of the crime establishing theoretical system, it must be specific. In the field of criminal law, only man and law are totally realistic. But man and law cannot become definitions of the criminal law directly, but should be first changed into theoretical definition through the definition of act. The exclusion property, critical property and united property are the revelation of the definition of act as logical starting.The act theory unites the idea of man in a whole. During the development of the act theory of the criminal law, the understandings of"man"are also becoming more and more just. But since our understandings on the definition of"human"are unlimited, we shall never obtain a totally realistic and complete idea of man, and it is unnecessary of doing so. The fundamental idea of"man"can only be obtained according to the characteristics of the criminal law.The world where man lives is not only an objective world in contrast to the subjective man, but also a society where there are many regulations. Man can not only change the objective world, but also change the normalization relations where he is. This kind of man, which exists between both objective and social world, influences both of them and interacts with both the subjective world within him and the two outer worlds, is the man that should be defined in the criminal law act theory.Therefore we can describe act as: certain social result caused by the man as a social member. This statement is not a closed definition of act, but a prescription of its partial inner property.
Keywords/Search Tags:Crime establishing theoretical, Act, Person
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