Comparative Research On Nature Of Crime

In the perspective of comparative research, the author tries to analyze the coincidence and difference in the content, function and amplification of our country's social harmfulness theory about nature of crime and the theory of legal interest damage and norm violation about nature of crime in the criminal theory in continental law system, compares the advantage and disadvantage of the two theories and hopes to explain and interpret the feasibility and necessity of the introduction of the western legal interest damage theory. The contents of the thesis are followed as:First part, the author introduces the theoretical content about nature of crime in our country and the criticism and anti-criticism of the theory of social damage, and proposes the questions.Second part, the author tries to clarify the connotation and requirement of the principle of legality to analyze the due connotation, criminal function and the process and effect of enforcement of the concept of social harmfulness as nature of crime and built the basis for the following comparative research.Third part, introduction and analysis of the relevant theory of substantial definition of crime in criminal theory in continental legal system, the analysis includes the theoretical connotation , criminal legal function and effect of enforcement.Forth part, the author sets up the standard for comparison with the aim of modern criminal law. Upon the basis of analysis of criminal theories in our country and continental law system, we have the further comparative system to affirm the advantage and disadvantage of the two theories, and propose the reasonable judgment to the feasibility and necessity for the introduction of the concept of legal interest, theory of legal interest damage and norm violation.The main viewpoints of the thesis are followed as:1.the author supports the bipartite interpretation of"social harmfulness"in the perspective of function, which is the distinctive connotation of social harmfulness in the perspective of function of the legislative and jurisdiction. In our country's criminal theory, social harmfulness is regarded as the innate character of crime. The concept is submitted in the angle of the substantial crime to solve the problem, which the people are not satisfied the formal definition of"crime is the act violating the criminal regulation"or"crime is the act punished by criminal law", and ask"why"to interpret the connotation of crime and the standard of the foundation of crime, whose aim is to prove the justification of the existing law, but for the aim the law cannot provide itself and need the supports beyond itself. Hence in the angle of interpretation and regulation of legislation, the connotation of substantial definition of crime must exist beyond the effective law, and the"nonstandardness"and"absence of regulated quality"are not avoidable. So the view in our theory has nothing to be criticized in the degree that the nature of crime is the social harmfulness of act, it means that the act damages the social order and social relations. The called"social harmfulness"is a social way to interpret crime and absence of care to individual, and embodies the values of nation and society-oriented.As the substantial definition of crime, the social harmfulness is used to not only interpret and regulate the legislation but also provide the interpretation and implementation of conviction and sentencing in the procedure of criminal jurisdiction. But the enforcement of the function is not directly manipulated by the substantial definition of crime and needs the support of the theoretical system of criminal construction. There are two problems in the sphere of criminal construction closely related with the effective law. One is that"social relations"and theory of social harmfulness are based on the social protection and ignorance the safeguard of human rights, and lack the guiding effect to safeguard human rights in the substantial implementation in constructive elements. Two is that there is not non-guilty aisle in the theoretical system of criminal construction, and is not available to amplify the proviso and short of manipulation and security of legal implementation.2.In most criminal theories in continent law system, the substantial definition of crime is described as the act damaging the legal interest or violating the legal norm. There are some different periods of spiritual concept of legal interest, material concept of legal interest, constitutional concept of legal interest and non-material concept of legal interest in more than one hundred developing history. Today the non-material concept of legal interest is the most popular theory. But the issue of"what is legal interest""has not achieved the nearly coincidence"(Roxin). Reaching the rather agreement in aspect of"to provide criminal politic standard for legislation, to help legislator what should to be punished and not be punished", the German criminal theoretical circle admits the auxiliary protection to legal interest as the mission of criminal law. The denial or violation to"norm"is beyond the violation to the effective law's norm. The theory of"norm"thinks the crime not only violates the effective law's norm but also the social norm before the effective law. For the criminal police's function to regulate the legislative goal, we know the"legal interest"and'norm"are the concept with ambiguous connotation, beyond the effective laws, and short of"norm qualities". The difference of legal interest and norm is the orientation of the concept. The orientation of concept of legal interest is submitted to restrict the national power of penalty and protect the individual's interest; and the concept of legal interest of individual is the core in the concept. The orientation of the norm is submitted to protect social stability and social communication. There is a common agreement on the function of legal interest in legislation and jurisdiction, but not distinction the concept of legal interest in legislation and jurisdiction. The advantage of the stratum structure of the theory of establishment of crime in the continental law system is that the judgment of the violation and responsibility after constructive elements provides the possible non-guilty aisle and is helpful to achieve the criminal protection to human rights, and safeguard the manipulation and security of the laws'implementation.3.Accepted by the theoretical circle, the goal of criminal law is to protect the society and safeguard the human rights, and the presumption of the nature of crime must serve the goal of criminal law. Both the theoretical contents and enforcement of function of criminal law should follow the goal of criminal law. As the standard, comparing the theory of nature of crime in our nation with the substantial concept of crime in continental law, we almost make the conclusions as:(1)In the aspect of theoretical connotation, there is no significant difference between social harmfulness and legal interest. The social harmfulness is argued by the ambiguous connotation and absence of basic regulatory qualification, and the same to legal interest. It is impossible to interpret and regulate to legislative justification with the basic regulatory qualification for both social harmfulness and legal interest.(2)In aspect of theoretical criminal function, they have the nearly same functions such as the function of legislative interpretation and restrict, the function of substantial illegal judgment, the function of classification of protected objectives and the function of interpretation of constructive elements. The judicial function contains he function of substantial illegal judgment and he function of interpretation of constructive elements.(3)In the aspect of enforcement of function of criminal law, there is significant difference between social harmfulness and legal interest. Because the basis of social harmfulness and legal interest are different, one is upon the value of nation and society and another is upon the value of individual. To the function of legislative interpretation and restrict, the concept of social harmfulness lacks the idea guide to protect human rights and the effective legislative restrict. To the function of interpretation of constructive elements, the concept of legal interest is related to the effective law and favorable to the definiteness for the interpretation of constructive elements and stability of laws; the"social relations"lack the connections and regulative to the law, and are easily interpreted the constructive elements at random and not favorable to definiteness and stability of laws. To the function of substantial illegal judgment, because the stratum structure of the theory of establishment of crime in the continental law system has the non-guilty aisle to guarantee the implementation of the social justice and manipulation and safety of implementation of law, further safeguard the human rights. The theory of four constructive elements in China does not propose the systematic status for preventive illegal causes and preventive responsibility causes. It has not the non-guilty aisle to guarantee the implementation of the social justice and manipulation and safety of implementation of law, further cannot safeguard the human rights.On the above-mentioned comparative analysis, we can know, the criticism to the"social harmfulness"is reasonable; the concept of legal interest take advantage in safeguard human rights. But we should realize; the advantage of the concept of legal interest comparing to the concept of social harmfulness is mainly focused in the function of jurisdiction. We could replace the"social relations"and"legal interest"in the function of interpretation of constructive elements, but the enforcement of the most important function of substantial illegal judgment depends on the existence of the stratum structure of the theory of establishment of crime in the continental law system, the problem cannot be solved through the simply replacement and the concept of crime is legal interest damage. If we don't have a self-exanimation and reconstruction on the theory of crime constitution in China, we just introduce the concept of"legal interest"; we cannot solve any substantial problems except showing the veil of the safeguard the human rights.