On The Basis Of Criminal Responsibility

Criminal liability and its basis, which concern all theories in the criminal law, have always been a perplexing issue in the research of criminal law. Compared with other branches of law, which pay little attention to their related "legal liability", although great efforts have been made on the criminal liability in the field of criminal law, it has never shed a bright light on the criminal liability and its nature. This book is attempted to make a general analysis of criminal liability and its basis from the macroscopic perspective in order to contribute a little to the study of the issue.This book has four parts: introduction, preface, two parts, and conclusion.Introduction. This book first reviews the present studies on criminal liability at home and abroad, and points out that there are different theories such as "obligation theory", "consequence theory", "reproach theory" in China's studies of criminal liability, and different understanding of criminal liability will affect people's opinion of the system and structure of criminal law. In addition, there are also various ideas about what is the basis of criminal liability, which can not truly reflect the practice of social activity. All the factors considered, this book chooses this issue as its research topic.Preface. This part mainly deals with two problems---to define the criminal liability and its basis, which offers a basis for the following chapters. First, the book reviewed the theories of criminal liability since 1980s. Obviously, the theories since 1980s is generally influenced by those of the former Soviet Union. Under the influence of the Criminal Law theory of German and Japan, there appeared the phenomena that "mental attitude" and " reproach" are used to explain criminal liability. Because of the amendment of the criminal law in 1997, criminal liability becomes a inclusive term for all penal individuality. Undoubtedly, all these theories have been separated from China's criminal regulation and legal practice. The use of the term "criminal liability" in China considered, it means penal consequence that the criminal should take for his criminal act. The legal consequence of the crime should be expressed as criminal penalty, and there is no such a bridge as "criminal liability" between crime and penalty. Simply speaking, criminal law should include two aspects: crime and penalty. Thus, criminal liability is a upper term including crime and penalty, and the basis of "criminal liability" refers to the reason why the criminal should take liability for his criminal act, which is explained from the macroscopic and microscopic perspectivesFrom the standpoint of the state, part one deals with the basis of the criminal liability, that is, the reasons why a reasonable person should be punished for his criminal act in the sociological perspective. Since such social phenomena like criminal law, crime, penalty are all brought about by persons, the book firstly explores the issue of human nature, which is the key to find out the basis of criminal liability. In Chapter one of part one, based on the knowledge of the human nature the observation of a lot of facts, the author points out that human nature is a special attribute, which distinguishes human beings from other species. Specifically specking, the special attribute refers to the two characteristics of human needs, which other species do not have. One is that human needs are never satisfied, and the other is that the way of being satisfied should be after other's consent. Since the two are always in conflict, people have to communicate with others to form a society and state on the one hand, and on the other hand there should have strict regulations to safeguard the safety of all social members---the way of being satisfied should be within the limits of others' tolerance. The limits are described as laws after the existence of the state. Therefore, the laws are means that all social members safeguard their rights of being satisfied under a specific social condition. The fundamental task of modern country and legal system are to protect and develop the basic human rights of all social members. In the following, the book deals with the characteristics of criminal act. From the characteristics of criminal penalty, it can be concluded that in modern countries crime refers to the act of infringing on the whole legal system of safeguarding the basic human rights of all social members. As a result, the basis and reasons why a reasonable person should be punished for his criminal act is that the law has to deprive the criminal of the basic human rights to prevent crime, and consequently, to safeguard those of all social members, which is a compelled choice decided by two characteristics of human needs. Human needs are never satisfied, and pursuing the maxim of the benefits are both human behavior and the general pattern of the state behavior. In order to safeguard the larger benefits---the basic human rights of all social members, the rights of the criminal have to be deprived of through penalty. Therefore, the deprival of the basic human rights of the criminal as one of the citizens should be within the limits of "being compelled". In Part two, the book is about the specific components of criminal act from the regulative level of the criminal law, where the author concludes that subjective offense is the basis of the criminal liability of the criminal for his crime. In Chapter one of this part, the author finds out the rule of the legislation of the criminal law from cases at home and abroad, and thinks that the criminal law demands that a reasonable person take criminal liability for his criminal act under the control of subjective offense. Furthermore, in order to attach more importance to the view that a reasonable person should take criminal liability under the control of subjective offense, the author defend against the theory of strict liability crime, which is highly respected in the academic field. Then the book covers two chapters to talk about the basis of criminal liability of a reasonable person for his act under the control of subjective offense. For one reason, the act of a reasonable person under the control of subjective offense objectively inflicts harm on the benefits protected by the criminal law. Either from the regulations of the world's criminal law, or from the features of the criminal law, the reason why a reasonable person should be punished for his crime is that the crime objectively doses harm on the benefits protected by the criminal law. If a person is only of danger to society, the penalty is inflicted on him, which is against the principle of "being compelled".From the axiom of the human behavior, human behavior is always performed under the control of one's mind, and it always imposes some effect on the objective world. According to the criminal law, mens rea and misfeasance are the processes of the act forbidden by the criminal law and its consequences on one's own mind. Therefore, a reasonable personable should be criminally punished for his act under the control of subjective offense. For another reason, the fact that a reasonable person commits a crime indicates that he is capable of recognizing and controlling his behaviour. If a person is capable of recognizing and controlling his behaviour, he should perform the obligation of not doing the act forbidden by the criminal law. As a result, if a person transform the ability of recognizing and controlling his behaviour into subjective offense of committing a crime, he will break the criminal law and be punished for his crime. In the last chapter of Part two, the book deals with the basis of specific criminal liability. In a given country, the importance of the criminal liability is closely related with that of the system of the criminal penalty, which is proportional to the level of the human needs by the majority of the citizens. As to a certain criminal, since the nature of the criminal act is that a reasonable person's mind is against the values protected by the criminal law, which indicates that the reasonable person' s attitudes stands against the criminal law. Consequently, in order to prevent crime, the quantity of the criminal liability should be proportional to the strength of the mind and the attitude of a reasonable person. All the facts that can show the reasonable person's mind and attitude are against the values protected by the criminal law can influence the quantity of pealty.