Study On The Theory Of Criminal Illegality

Criminal illegality which is one of the characteristics of crime is the concept of criminal law in our country. In traditional theory, social harm is the core of the concept of crime. There is a lot of relative research on it, and the criminal illegality is only the legal subsidiary to social harm which only has of the functions and role for the form. For a long time, scholars of criminal law have reached on a consensus that criminal illegality is the legal characteristics of crime the form features and embodies social harm legally. Therefore, we seldom have got the motion to research it in-depth. With the introduction and learning of the theory in Civil Law, we found that although the two are quite similar in name, but are totally different in content and function. Theory of civil law builds a large-scale system with illegality functioning as the core. The illegality is the core of the concept, both in the formulation of the concept of crime or in the structure of the Elements of Crime. It has colorful theoretical contents and scientific evaluation mechanism and diversified functions, which make us astonished. However, in our criminal illegal theory, society harm, acts in line with criminal constitution are the three-in-one. That is to say, all the evaluation of a conduct, no matter form or fact, completes together. It not only Confuse the distinction of "facts" and "value", and overlooks the level of substance, but also not conducive to limit the penalty launching by procedures, and to a better protection of human rights. It does not help the realization of criminal justice. Basically criminal illegal is an issue of criminal constitution. Changing the concept of criminal illegal from form is a far-reaching issue, which has a significant impact on the whole system of crime. Therefore, the theory of criminal illegal can reflect on the social harm theory and even the entire criminal system. This paper starts from the two difference illegal theory, and judge and revise the criminal illegality in our country with a comparative study on the two legal system. The full text is divided into four parts:The first part is an overview of the theory of illegality. In our country, we believe that Illegality is the main characteristics of a crime. This theory comes from the Soviet Union. In the Theory of criminal law in the former Soviet Union, the criminal illegality only means statutory crimes, and is the legal standards embodied entities of social harm. Although Russian criminal law theory now believes that the theory of the past too much emphasis on "social harm", and gives the criminal illegality a new evaluation which helps to protect human rights and practice Statutory crime principle. But it can not break away the former attitude towards criminal law theory. In The civil law system, the research on the criminal illegality is for the need of analysis the definition of offence and they take criminal illegal as the basis for a crime. In the history of criminal law doctrine, independent exposition of the illegality is in the latter half of the 19th century. In Germany and Japan, compliance, illegality, and responsibility for evaluation judge a crime in order. The establishment of a criminal offense is judged as behavior no value from the point view of illegality. Thus, with the development of criminal law the system of criminal theory has been changed. Through historical research on the Chinese criminal law and civil law, we found that, the illegality in terms of the concept of crime itself, or in the system's status and function of the characteristics of crime and the illegality as, one of the establishment of the Elements of a crime are two completely different concepts which just have the similar name but are far from function.The second part is the study of the nature of illegality. our concept of criminal illegality is much of statutory and formal meaning. Therefore, this article will focus on the theory of civil law. Through the study of the illegal nature in civil law, we try to find the theoretical support for the substance of our criminal violations changing from the form to practice. As for the Nature of the understanding of the law, in civil law it has always recognized as the existence of two passes,: the illegal concept of objectivism and subjectivism concept of the law. Based on the view point of different law, the main difference in perceptions and reflection, the final choice of an objective concept of law is as a passing knowledge of illegality. In fact, both the subjective nature of the law is which determine the law as an objective and the normative nature of law defines the law as evaluative the norms, are all possible and feasible to understand the law. In point of view in the field of social science which believes there is absolutely no truth, the history of the development of the law also proved that. The key is to take a position which is more reasonable and in line with the research purposes. As a social norm, the mission of law is to protect from the outside that have been given the order to live together, and to improve internal only in order to maintain the legitimacy of the need for external limits that are considered. The law is against this order of an objective life; it is certainly based on the consideration of the objective theory of illegality. With the depth of the study on the continuous development of criminal law theory, the objective of illegality occurred within no value which differences the essence of the law. The author believes that the results of the illegal nature of no value concept are more reasonable. Although the results of the illegal nature of no value concept is not perfect, the theory has limitations and drawbacks, but the drawbacks of no value with explicit, easy to be perceived by people, and through other ways to compensate for and overcome. No value compared with the behavior, but also objectivity. Although the criminal law has a two-way nature of the task, it is necessary to safeguard national security order, but also the freedom of citizens, but citizens in the country is still weak and in front of the helpless, the coordination of criminal law in the two should be inclined to restrict the right of the State penalty free launched, at this point, resulting in no value no value is indeed better than the acts of the criminal law reflects the spirit of the modification of law.The third part is to determine the theoretical research. Law judge of the problem is posed by the theory and crimes are closely linked. Constitute a crime criminal law theory is an important issue in the criminal law to solve all the problems are to some extent, constitute a crime and therefore constitutes a crime theory is also known as "the cornerstone of modern criminal law theory."And the law of the judge in the crime also constitutes a central position. As a result of various legal systems of different countries in the design of a crime different, the identification of illegal has very different model. In this paper, the civil law only constitutes a frame of reference of the crime, combined with our theoretical analysis constitute a criminal offense and determine their differences. The establishment of civil law criminal system has got a clear progressive. This structure clearly reflects the three elements of crime between the establishment and the resulting sequence of vertical cross-cutting decision. System set up by the civil law mode of criminal influence in determining the illegality is also formed in form and substance of the thinking process and to determine ways. in Germany and Japan, the criminal law functions as the central construct of the crime system, the first problem is how an objective, neutral assessment of the illegal acts, which relate to formally determine whether the conduct in violation of the law. The principle of legality in request, we must punish the perpetrators of the criminal law in accordance with the provisions of limited scope. However the only elements of the inference of illegality, unlawfulness can not fix, but also the need for further confirmation of the judge, which recognized the law of independence. Forms of illegality is an act in accordance with the provisions of criminal law in line with the conditions set up to determine whether its illegality.However, due to the conditions of the establishment of criminal law, for the existence of a natural defect, so to determine which of the acts with the law may not be fully in line with the general concept, or is not a very social in nature. Therefore, in accordance with the nature of society as the core of the substantive elements of compliance with the conduct of re-examining the value of the outcome of the conviction has become an important step in the reasonableness. With the theory to determine the substance of the law of the deepening of civil law can be fined and put forward the theory of the law, the author of their background and views are introduced,and pointed out that the civil law is still in dispute simple theory can not be used for me,it should be crime in the whole system to be thinking, in our theory of the existing system the existence of the theory there is no need for one now. As a result of crime in our country and the civil law system, the different structure of the law of the judge is also reflected in different ways and kind of state. To determine the law of our country embedded in a crime, illegal elements in our country for the crime constituted by the inclusion of the four elements. Although there is no independent illegality judge, its value reflects in the elements of an offense constitution. When we study on crime constitution theory in our country and that in civil law,though differences on the establishment,we should not ignore the coincidence in their constituent elements.The last part is about the reflection and improvement of the illegality theory. it is the absence of theory of criminal illegality in our country, and thus there is not the elements which constitute the corresponding stage with the civil law. In accordance with the characteristics of crime constitution in our country, the judge in the establishment of crime has comprehensive. At the same time, therefore, the law judge of the course also included in the crime to determine the course of the establishment. As a result of crime, the illegality can not distinguish from social harm in determining whether the act was illegal to play a central role in the function of the substance of the law which civil law meaning and function is similar to Based on. With the development of the illegality theory in our Criminal Law and the introduction of foreign criminal law theory, there has been confrontation between the two views. The author agrees with the theory of social harm expelled from our criminal law theory, but this is not a simple replacement of the expulsion. In order to establish a scientific and rational system for the target crime,we need a systematic direction. In order to realize the safety and operability of the law,the substance and independence of the illegality judge is inevitable.