The Concept Of Crime Research

As the foundation of the science of criminal law, the concept of crimes has basic values for study, but the shortage of clear understanding of the concept of crimes makes it difficult to prescribe. Thereafter, it is originally meaningful to comprehend the nature of crimes, which is the basis of the reasonable conclusion of the concept of crimes and the instruction of criminal legislation and judicial practice. And this dissertation is divided into six chapters as follows.Preface. This chapter gives a brief introduction of the status quo of the concept of crimes including the approaches and defects and studied by domestic criminal circle, and provides the thesis paper with study methods on the basis of the mentioned.Chapter one reviews the retrospect of the concept of crimes, mainly of the study of the development of the ancient concept of crimes at home and abroad. In China, the concept of crimes was traced back to the West Zhou Dynasty and shaped in the Spring and Autumn Warring States times, when Morcious came up with a reasonable idea that the crime was a taboo, believing that crimes were acts that broke the law. While in foreign countries, written laws in ancient Babylonian period did not identity the concrete crimes and tell apart the characteristics and nature of the common civil offence from the characteristics and nature of crimes, thus could not end with a general concept of crimes. And the later Hebrew law that was greatly influenced by the Babylonian law, believed that acts breaking God's will was the idea of sin in embryonic form. It was not until Roman period was the scientific concept of crimes put forward, believing that sins were neither breaking rules under God nor only harmful to individuals, but also harmful to the national or social benefits. The concept of crimes in Roman period began to distinguish crimes with civil offences in procedure, which showed that people had had deep understanding about crimes and generated the theoretical foundation of the concept of crimes of modem penology on the basis of the content of the nature of crimes. While ancient India, deeply influenced by religion, had the basic idea of the concept of crimes until the Manu Smriti of Maurya Dynasty. Chapter two gives a general conclusion and analysis of different theses of the concept of crimes of modern theories of criminal law and penal legislation. One more important classification believes there are three types of the concept of crimes, which are the concept in form, concept in nature and concept in mixed type. The concept in form explains the criterion for the identification of crimes, because crime was originated by the law-makers, who thought the so-called crime was the crime, it was unable to limit the power of the law-makers, which would bring about the tyranny of the law-makers. And concept in nature is also an exploration and study of the nature of crimes, that is, concept in nature is to interpret the reason why laws identify a certain act as a crime or on which basis the law-makers identify a crime. On the analysis of the existing studies of the nature of crimes, the theses can be classified into three types: they are the theory of objective harm, theory of subjective evil and theory of criminal personality. These three types of theories are some reasonable as well as incomplete. The theory of objective harm neither identifies the crime and civil offence nor interprets the causes of punishment in attempt and in preparation; theory of subjective evil does not define the legal connotation and emphasizes on obeying the law that will give rise to evil law as legal and the despotic of the law-makers; while personality in the theory of criminal personality is beyond measurement that it is easy for law-makers to trample public basic human rights by speaking in the name of defending the society. Moreover, the three types of theories are separated without forming a unity to interpret the nature of crimes. The concept of crimes in mixed type tries to use a neutral way, but it is apt to the extreme of concept in form of concept in nature when it cannot decide what criterion to base on.Chapter three is to illustrate the essential feature of the crimes. The essential feature of the crimes is a symbol to differentiate the general violations against law from the crimes easily and also shared by all crime. Based upon these, chapter three explores the three existing basic characteristics of the crimes. For can not be distinguished the general violations against law from the criminal actions, the social harms is not the essential feature of the crime. For can not be discriminated the no crime from the crime independently, the standard of the criminal illegalities is not the essential feature of the crime, too. And only the deserve punishments can be the essential feature of the crime. The deserved punishment embodies the visual criterion of social harmfulness and criminal illegality, it not only includes social harmfulness and indicates that social harmfulness achieved a certain degree, but it also is the premise and foundation of the criminal illegality. It is true that only deserved punishment can easily make a distinction of crimes from other general violations and display the unique characteristics of crimes, therefore deserved punishment is the essential feature of crimes.Chapter four is the redefinition of the nature of crimes as well as the deep influences on the criminal theories. Because the laws of cognition are the process from external to internal and from phenomena to essence, we should reveal the essence of crime from essential feature of the crimes, which is deserved punishment Deserved punishment illustrate justifications for state's punishment power and criminal law as an independent department law, so we can define the essence of crime according to the purpose of criminal punishment and the regulation target.Criminal penalty as the toughest sanction measure, is to deprive civil basic human rights in the purpose of protecting the public civil basic rights, while national law system is the safeguard of the public basic human rights. Thus, criminal penalty is not only legal consequence, but also represents social relation, which is the regulation target of criminal law. Furthermore, we can illustrate the social relation from the regulation target of criminal law. As we all know, criminal penalty is the symbol to differentia criminal law and other law, but the standard to ascertain criminal law as an independent department law is not criminal penalty but its own regulation target, that is, the relationship between public basic human rights and criminal basic rights. Owing to the national law system is the system to safeguard the public basic human rights; the nature of crimes is the invasion of the national law system or a real danger (objective harm) to the public basic human rights, which is studied in the angle of social attribute. Act is the basement of the nature of crimes, and "Crime is an act" is the basic proposition of the theory of modern criminal law. From modem times on, criminal law circle at home and abroad has put forward mainly four act theories: they are theory of spontaneous behavior, theory of social behavior, theory of purpose behavior and doctrine on conduct of personality. Among the four theories, theory of spontaneous behavior, theory of social behavior and theory of purpose behavior cannot solve the problem of how the circumstances before/after the crime influence the sentence of conviction and criminal punishment, and doctrine on conduct of personality can interpret the circumstances before/after the crime, but it cannot limit acts within a range. It is believed that acts are a course that actors make use of objective conditions to influence the objects under actors' will. While criminal acts are an organic unity of the elements of crime and has objective harm, which is created on the basis of the actors' will against law (subjective offence) and determined to the characteristic and range of acts and also the core role in criminal acts. Therefore, criminal acts ought to be defined by subjective offence, only acts with subjective offence can be called crimes. Since subjective offence is the actors' capacity for criminal responsibility, that is, the embodiment and application of cognitive and controlling abilities, which come from social practice and are influenced by some elements. One's imperfect socialization can result in the criminal personality and the attitude that actors resent, contemn or disregard of what criminal law preserves, thus criminal personality is the cause of the nature of crimes. To sum up, the objective harm of criminal acts (an invasion of human rights) studies the nature of crimes in the aspect of social attribute; the understanding and will against what the criminal law preserves (subjective evil or will against the criminal law) inclusive and dominating criminal acts, studies the nature of crimes in terms of behavior structure; and the attitude that actors resent, contemn and disregard of what the criminal law preserves, studies the nature of crimes in terms of actors' personality or cause of crime. The three aspects of the nature of crimes are interassociated and complement, objective harm and criminal personality are related by subjective evil, or criminal personality is the premise, objective harm is the foundation, while subjective offence is the core. The thesis further discusses how the redefined nature of crimes influences the basic principle of criminal law, types of crimes, gradation of penalties and the function of penalties.First, the nature of crimes is the invasion of the national law system (public human rights), and criminal law is forced to deprive certain people (criminals) basic human rights for the sake of public basic human rights. Therefore, the principle of necessity is not only the foundation but also the sovereign principle of the criminal law, which leads the principle of suiting punishment to crime and the principle of legality.Secondly, the refined nature of crimes makes an impact on the different types of crimes which are represented as follows. First, as for the preparatory crimes, the judgements regard impunity as its principle and punishments as its exception. The reason of the judgements is that the preparatory crimes can not explain the real danger of the actors against the state legal systems. Second, the punishments of the attempted offences cannot but employ the "should be punished". Though unlike the accomplished crimes which have caused the actual harmful or threat against the state legal systems, the attempted offences have illustrated the negative attitude of the actors against the state legal systems and, the attempted offences have not completely developed and accomplished the subjective offences because of the external objective causes. In this case, the judgements shall employ the "should be punished". However, in terms of the damage caused by the attempted offences is lighter than the accomplished crimes', the judgements usually employ the mitigation of punishment which means the punishments shall be lightened. Once again, as for the incapable crimes, the judgements regard the impunity as its rule. This is because the actions of the incapable crimes do not have social harmfulness. One reason is that the incapable crimes represent the criminal personalities of the actors, nevertheless, these kind of personality attitudes do not transform to the subjective offences objectively and efficiently; another reason is that the actions of the capable crimes are not either the expansion of objectivity of the subjective offences or the perpetrating acts because the incapable offences are lack of cognitive abilities. Finally, as for the joint offenders, either the accomplices or the principal offenders, dominating by the subjective offences respectively, regard the actions of other criminals as their objective conditions and impact the state of the people or articles protected by the criminal law. Therefore, the judgements of the joint offenders shall be in the light of the respective actions dominated by the subjective offences.Again, the influence of the gradation of penalties is mainly based upon the value importance by the criminal law and the degree of the actors' attitudinal oppositions. First of all, viewed from the values fenced by the criminal law, and because the social harms vary according to the nature of the crime which varies based upon the criminal subjects, the gradation of penalties varies, too. And for the same crime, the most important standard to appraise the objective harms of individual crime is to weigh the actual damages against the values sheltered by the criminal law. Second, viewed from the oppositional attitudes and degrees of the actors against the values guarded by the criminal law, whether the attitudinal oppositions present in many aspects, including the malefactors who had meritorious services, the criminal intentions and negligence, the discontinued crimes, the surrending criminals, the criminal motives, the criminal purposes, the coerced accomplices, the emotion offenders and the recidivists. Third, the possibilities of recommitments are also a primary standard to weigh the degree of the attitudinal oppositions.Finally, the impaction of penal function. Because crimes present the actors against the denial of will of the state legal systems and the foundation of will is criminal personality, the judgements shall reform the actors' criminal personalities in order to avoid further offences and perform an effective role of specific prevention. And for the people besides the criminals, including the potential offenders, the common people and the victims, the judgements could employ their deterrent and conciliation function to carry out the common prevention. In this case, the judgements can prevent further crimes effectively, fulfil the punishment of the crime, and protect the people.Conclusion. The thesis interprets the thirteenth article of Chinese criminal law on a new score based on the redefinition of the essence of crime. Crime is the act that infringes the society and deserves punishment in accordance with Chinese criminal law, and the meaning of infringing the society should be understood as infringing the national law systems (or all citizens' basic human rights). The articles of circumstance obviously slight and harm mild is reasonable when it means that the act is not a crime act owing to its not deserved punishment and not infringing the national law systems (or all citizens' basic human rights).