Criminal Elements Of The Object Studied

This dissertation deals with crime object element in China's four elements of crime constitution context。The crime object (the social relationship protected by criminal law) in value level faces the theoretical and practical dilemma, after clarifying the chaos on crime constitution theory, analyzing the connection of crime constitution theory and crime itself and true effect of crime constitution theory, the author argues that crime constitution is law structure embodying the special essence on different kinds of concrete crime, and the structure feature determines crime constitution should be in factual level and perceived directly by people, but the abstractness of the crime object in value level makes it not be perceived directly by people, so not crime object, but crime object element can be the one of the elements in crime constitution. Based on the aforesaid, the author defines the meaning of crime object element and ascertains its status in crime constitution. In order to correct the defects and improve the development of crime constitution theory, the author tries to change crime object as a hollow value symbol into law standard which can be understood and used by judicial officers in practice.The core viewpoint of this dissertation is that the usual crime theory consider crime object as social relationship which is protected by criminal law and infringed by crime which can not determine crime act, in view of the abstractness of crime object itself and it not conforming to the crime constitution structure. So crime object cannot decide the nature of crime, and it is not an element in crime constitution and just serve as the conception of value protected by criminal law. The author argue crime object element is the state of the person and thing which exhibit the right and obligation protected by criminal law. Based on aforesaid definition, this dissertation contains seven parts.Foreword: The crime object still in dispute since it had been transplanted from crime constitution theory of the Soviet Union in 1950s. The connation of crime object and whether it is an element in crime constitution still in dispute in academic circles. If we consider crime object as an element of crime constitution which lead to theoretical and practical difficulties. How to solve the problem is the purpose of the dissertation. The first Chapter deals with the problem resulting from crime object theory which is an element of crime constitution in China's existing criminal law. Most Chinese scholars consider crime object as an element of crime constitution which leads to theoretical and practical plight. China's crime constitution (including crime object theory) originated directly from the Soviet Union which was influenced by the social ideology. So, crime object theory always incarnates political and class attribute. After crime constitution was introduced into China, with the development of this theory, scholars put forward some new theory on crime object which is different from social relationship theory. These new theories mainly divided into two categories: one defined crime object from the viewpoint of criminal purpose and the value protected by criminal law, including right theory,right and interests theory,law order theory,law interests theory,disobeying law theory; the other define crime object from the philosophical viewpoint, including object of crime theory,the criminal victims theory. The academia has two different attitudes towards these theories. Those who affirm the theory consider only crime object can disclose the essence of crime---severe social harm. Without crime object, the other element cannot illuminate the essence of crime, because only the substantial of crime object can show the negative social value of the act. The others who disagree with the theories argue that the existence of crime object in criminal law contravenes the fundamental philosophy principles and make it disaccord with the other law theory, crime object cannot distinguish different crime and make logical mistake of "egg and hen, which is first" and is in different level with the element of crime constitution and confuse political effect with law effect. So, these authors argue that crime object in philosophical sense should take place of crime object deflecting the value protected by criminal law.The second Chapter deals with the conception of crime object element. Faced with the aforesaid plight caused by crime object as element in crime constitution, the author corrects the defect of existing crime constitution (it can not reveal the true effect of crime constitution and the cause of being element and the relationship of the four elements) and analyzes the attribute of crime constitution, then concludes that crime constitution is not the conclusion drawn by the criminal law, but the result of construction of criminal law with accordance with the common sense and fundamental logos which direct the judicial practice. After analyzing the relationship of crime constitution and the conception of crime, the author concludes that crime constitution is particular and phenomena, but the conception of crime is abstract and essential. Therefore the author thinks that crime constitution is outwardness which is phenomena and can be directly grasped by people. Owing to the true effect of crime constitution, the author concludes that crime constitution should be the crime cognizance standard which can distinguish different crime and be particular law structure revealing the special nature of crime. Obviously, this definition reveals the function of crime constitution and interrelationship of four elements in crime constitution. Then the author concludes that crime object should not belong to crime constitution in view of its structure feature and true effect.Because crime act is divided into four parts: crime subject,crime object,crime subjective part,crime objective part, crime constitution are the corresponding elements representing special essence of particular crime being directly grasped by people. So crime object element reveal the factual feature of social attribute of particular crime from the angle of social attribute of crime act. Crime is the act doing harm to society, and the harm is manifested by the change or the possibility of change to objective world resulting from act, and all crime manifest the factual feature of social attribute of act---the existence of person and thing protected by criminal law. This is the definition of crime object element. Further, the author illustrates that the relationship between crime object and crime object element is the relationship of essence and phenomenon and crime object element is "the part perceived by people" and crime object is manifested by crime object element.The author does not intend to negate the value of crime object itself through negating the status of crime object in crime constitution. After excluding crime object from the crime constitution, the crime constitution is factual judgment entirely without no value judgment factor which is determined by structure feature of flat four elements in crime constitution. All value evaluation should base on the fact, without evaluating the whole fact, we can not evaluate the value of act and can not consider it as an element in crime constitution and decide whether penalty is need. So, there should be value evaluation besides crime constitution. It is necessary to study crime object in value sense which can not recognize the nature of crime correctly, but the extent of crime nature. Anyway, we recognize crime nature on the basis of fact.The third Chapter deals with the independent status of crime object element. The author argues that the crime object is not one element in crime constitution, but the existence of person and thing protected by criminal law which manifests the social attribute is the element of crime constitution. Most of scholars consider the object of crime (person or thing directed by crime act)as the substantial of crime object element. Some scholars who disapprove the crime object as the element in crime constitution think that it is no need for the object of crime to branch off as an independent element. Because of the connection of crime object element and the object of crime, whether crime object element is an independent element is still a problem to be solved.Firstly, the author illustrates "all crime contains factual feature manifesting the social attribute of act", and the object of crime exists in all crime. The object of crime is not the whole person or thing as most of scholars say, but one of the features of particular person or thing which manifests the social relationship protected by criminal law and special essence of act in social attribute.Secondly, the author illustrates "the existence of person or thing representing the right and obligation protected by criminal law is an element of crime constitution", if there is no element manifesting crime object and no element marking the social attribute of act, it can not reflect the social harm caused by act and what social relationship being damaged. After affirming all crime existing factual feature of the social attribute of act and these feature being the foundation of crime constitution, the author indicates that crime object element should be independent: crime object element and crime object are differentThe forth Chapter deals with the substantial of crime object element. The author illustrates that the crime object element contains the object of crime,criminal consequence,the special time and place required by the particular crime. The object of crime is the existence of person or thing crime act pointing to which is manifesting the right and obligation protected by criminal law. Criminal consequence is the existence of person or thing which criminal law protected to be changed by crime act, and it is one logical consequence or possible consequence which is evolving in accordance with the crime subjective. Time and place which accounts for the object of crime and reveals the special social relationship representing by the object of crime is not belonging to crime objective part, but crime object element. Time and place is selective element which is regulated by criminal law.The fifth chapter deals with the relationship between crime and crime object element. The purpose dealing with crime constitution and crime object element is to ascertain crime by using crime constitution. So, dealing with the relationship between crime and crime object element is helpful to ascertain particular crime object element. The four elements in crime constitution are interdependent and inter-contained: the relationship of crime object element and crime subject element is manifested by the relationship of the actor' cognizance ability and crime object element being recognized or not. The cognizance and controlling ability of the crime subject should have crime object element as object。Without object, the crime subject can not show his cognizance and controlling ability. And subject can not be crime subject, and the criminal liability of crime subject element does not exist. The relationship of crime object element and crime subject element is manifested through object of crime and criminal consequence; no cognizance, and no cognizance, no controlling ability, no controlling ability, no crime subjective. In a word, without crime object element, the cognizance and controlling ability as crime subjective element has no substantial content. The relationship of crime object element and crime objective part is manifested by the nature of objective condition controlled or should be controlled by actor which is reflected by crime object element. For one particular crime, crime object element is the material foundation and precondition of the crime subjective. Without crime object element, there is no crime subjective element,crime subject element,crime subjective element.The sixth chapter deals with the sequence of crime object element in crime constitution. This kind of sequence on elements in crime constitution should fit for the logical sequence of each element in crime constitution ascertained by judicial practice. There are recognizing crime process viewpoints,system theory viewpoints,crime act generating viewpoints,logical progressive viewpoints which has its own sequence and ground. But these viewpoints are unsuitable to the effect of crime object element as one standard recognizing the crime. From the point of the effect of recognizing crime through crime constitution, the sequence of four elements in crime constitution should be in recognizing crime order. But we should not confuse the process of recognizing each element with clarifying the fact. Crime constitution is not standard referring by the investigators, but standard judges using as comparison between the crime elements and the fact when fact is cleared up. Because each act contains subject part,object part,subjective part,objective part, the whole case is investigated when the four parts is cleared. In the meantime, crime constitution is not standard to study the act structure. On the contrary, the study of act structure serves the crime constitution. Thus the sequence of the four elements has nothing with the process of act or clarifying fact. The sequence of the four elements in crime constitution should be crime subject element, crime subjective element, crime object element, crime objective element.