Study On The Theory Of Criminal Transgression

The criminal transgression is one of the key words in Chinese criminal theory. In the traditional theory The criminal transgression is the formal feature of the conception of the crime, the legal expression of The social harmfulness. So, The criminal transgression is a conception without substance.In fact, The criminal transgression is the evaluation of the act on the criminal law .Under the principle of legally prescribed punishment for a specified crime , The criminal transgression should be the basic feature of the crime in criminal law. The conception of The criminal transgression in the traditional theory can not express the true nature of it. Different from"The illegality"in the criminal law theory of Germany and Japan , The criminal transgression in Chinese criminal law theory is a whole ,"criminal"evaluation of the act. So, The conception of The criminal transgression couldn't be purely formal, it must contain substantial evolution of the act.In the dissertation, the author have worked for giving up the formal conception of The criminal transgression and proposing the substantial conception of The criminal transgression.The criminal transgression is the evaluation not only in the stand of the country but also of the society. The consideration of the social value in The criminal transgression contributes to the correction and reasonablity of the evaluation of The criminal transgression.There is controversy of Handlungsunwert and Erfolgsunwert concerning the nature of"illegality"in the criminal law theory of Germany and Japan. Concerning the nature of the crime, some Chinese scholars prefer the theory of Erfolgsunwert which bases on judgment of legal interest and opposethe traditional theory of"The social harmfulness".In the author`s opinion both of the Handlungsunwert and Erfolgsunwert are one-sided,the revised Handlungsunwert which contains the judgment of legal interest is the best choice in china concerning the nature of the crime.