On The Reconstruction Of The System Of Constitution Of Crime Of Our Country

The theory of constitution of crime is called a gem of crown of theory of science of criminal law in foreign countries and our country. It is the"core problem"of the theory of crime of science of criminal law. Its level of development represents the level of development of the whole theory of criminal law, too. Therefore, there is an important significance in advancing the level of research into science of criminal law in our country. The purpose of research of the dissertation is to supply a reasonable criterion of ascertaining crimes for judicial practice.The methods of research of the dissertation are as follows: comparison, induction, deduction.The dissertation consists of six parts.In the introduction, the dissertation introduces several main positions of the scholars of our country on the current system of constitution of crime. At the same time, the dissertation indicates the author's position which is to reconstruct the current system of constitution of crime. In addition, the dissertation makes some necessary explanation.Chapter one is a macroscopic reconstruction of the system of constitution of crime of our country. It means a reconstruction of the whole frame of the system of constitution of crime. From Chapter two to Chapter four, the dissertation makes a microscopic reconstruction of the system of constitution of crime of our country. It means a reconstruction of the inner factors of three conditions of the three-level system of constitution of crime. Chapter one is"The Reasons of and The Selection of a System of Constitution of Crime".Section one is"The Reasons of Reconstruction of the System of Constitution of Crime of Our Country". First, there are many defects in the system of constitution of crime of our country. Second, the dissertation proves that it be impossible to eliminate the defects by partially reconstructing the system of constitution of crime of our country on the basis of refuting all kinds of theories of reformation.Section two is"The Selection of a System of Constitution of Crime". After analyzing various theories of reconstruction of the system of constitution of crime of our country, the dissertation thinks that all of the theories can't really eliminate the foregoing defects. By refuting all sorts of theories of doubting the introduction of level system of constitution of crime of the Continental Law, and on the basis of the comparison and analysis of the main systems of constitution of crime in the main countries of the Continental Law, the dissertation thinks that the introduction of the system of combination of New Classic and Teleology Systems is the best way to eliminate the foregoing defects. The system includes three levels: satisfaction with the definition of the offense, illegality, culpability.Chapter two is"Satisfaction with the Definition of the Offense——the Foundation of Zurechnung".Section one is"Actus reus". The dissertation defines actus reus as the factor of Tatbestand. All kinds of theories of actus reus are not mutually repulsive. Each of them functions in the field of itself.Section two is"The Object of Actus reus". The dissertation thinks that all crimes have objects of actus reus. The object of actus reus is an independent factor of Tatbestand which is a person or a thing as the target of actus reus. It is the material carrier of object of protection. The dissertation puts forward the conception of non-independent object of actus reus.Section three is"Effect". The dissertation thinks that the effect as the factor of Tatbestand is the objective fact that the actus reus causes the factual harm or danger to the object of actus reus in completely natural sense. And it is a necessary factor of Tatbestand.Section four is"Causation". On the basis of introducing various theories of causation in foreign countries and our country, the dissertation thinks that the theory of condition is correct. However, we must accurately understand the formula of relation of condition:"If an actus reus/ intervening factor doesn't exist, the effect of itself wouldn't exist, either."Then, the dissertation introduces the theory of Objective Zurechnung which has many problems and defects and puts forward several concrete suggestions to realize Objective Zurechnung.Section five is"The Objective Factors Indicating the Condition of Actus reus". The dissertation defines the objective factors indicating the condition of actus reus on the basis of criticzing and learning from the conception of"Objective Exceeding Factor". These factors mainly include: the means of actus reus, the premise or circumstances of actus reus, the special identity of behavior, the norm factors indicating the nature of non-independent object of actus reus.Section six is"The Subjective Factors of Tatbestand".The dissertation defines the intention/negligence of Tatbestand and limits the range of factual mistake of Tatbestand. Further, the dissertation classifies the factual mistakes of Tatbestand which hindering the intention. The viewpoint that thinks so-called subjective exceeding factors haven't corresponding objective facts is incorrect. In fact, the subjective exceeding factors and the objective facts are entirely corresponding but the objective facts are not necessarily realized. In addition, the subjective exceeding factors only exist in the crime of intent.Chapter three is"Illegality——Objective Zurechnung".Section one is"The Conception and Essence of Illegality". The dissertation thinks that the essence of illegality should be the unity of form and content, and the unity of legal attribute and social attribute. The objective criminal illegality is the essence of illegality. It is incorrect to formalize the criminal illegality. The content of illegal actus reus should be divided into three levels of which abstract degree gradually rises: objective violation of legal interest, objective violation of right, objective violation of legal relation.Section two is"The Reasons of Hindering the Illegality". The dissertation discusses and proves the criterion of judgment of the reasons of legalization is the theory of balance of legal interest which is be perfected by the author. Then, the dissertation discusses the theoretical premise of the punishable illegality which is the theory of punishable illegality proved rational by the author. The dissertation analyzes the relation between the proviso of Article 13 of the penal code of our country and the reason of hindering the punishable illegality, and points out that the proviso is reasonable. In addition, the dissertation explains the proviso.Chapter four is"Culpability——Subjective Zurechnung".Section one is"The Subjective Factors of Culpability". The dissertation thinks that the criminal responsibility should be an independent factor of culpability. The dissertation ascertains the situation of the intention/negligence of culpability in the system of constitution of crime, and defines the intention/negligence of culpability. The"intent"of crime of intent is also a subjective factor of culpability.Section two is"The Possibility of Consciousness of Illegality". On the basis of introduction and review of the theories of consciousness of illegality in foreign countries and our country, the dissertation argues that the possibility of consciousness of illegality should be one of the independent factors of culpability as is the intention/negligence of culpability. The"consciousness of illegality"should be the consciousness of objective criminal illegality which is the unity of form and content. In addition, mistake of illegality can't hinder the intention of culpability but can be a reason of reducing the punishment when the possibility of consciousness of illegality exists while the consciousness of illegality doesn't exist. The culpability is hindered when the possibility of consciousness of illegality doesn't exist.Section three is"The Anticipated Possibility". On the basis of the classification of the anticipated possibility in broad sense and in narrow sense, the dissertation thinks that the anticipated possibility on the level of culpability should be the one in narrow sense. After analyzing various theories of situation of the anticipated possibility, the dissertation thinks that the anticipated possibility is the 4th independent factor of culpability. According to the analysis of the relation between the articles of penal code of our country and the anticipated possibility, the dissertation thinks that a few articles of general principles indicate the idea of the anticipated possibility. Moreover, Article 16 and Article 61 can be generally applied to all of the specific provisions of the penal code. Therefore, the extra-statute judgment of the being or degree of the anticipated possibility doesn't exist in our country. Through analyzing the attitude of Germany and Japan to the application of the anticipated possibility, the dissertation thinks that the extra-statute application of the anticipated possibility shouldn't be restricted. After reviewing the viewpoints of the scholars in foreign countries and our country, the dissertation thinks that it is unreasonable to restrict the application of the anticipated possibility to certain types of crime. On the basis of analyzing all sorts of theories of the criterion of the anticipated possibility, the dissertation thinks that the criterion of the anticipated possibility is the combination of the criterion of average person and the criterion of typical person. The dissertation considers the mistake of the anticipated possibility as a mistake of the facts being the foundational premise of the anticipated possibility. Therefore, this kind of mistake is a factual mistake of culpability and isn't a mistake of law. In addition, the dissertation discusses and makes up the classification of mistake of the anticipated possibility.At the conclusion, the dissertation restates the author's position.