Theory On The Relation Between Crime Concept And Criminal Constitution

Among the current discussions in the Chinese criminal law academia about rebuilding or completing the system of criminal theory, there comes out a good many issues, in which the concept of crime based on social harmfulness is again put on the very central place. While criminal constitution has been the hard core of Chinese criminal law system, what kind relation is between concept of crime and the criminal constitution, whether the concept of crime which determines both the nature and the measurement of crime should exist after the"Occam's Razor"examination, and whether concept of crime alone could take the task of crime judging? This dissertation is trying to reply all these questions.Macroscopically, there is a structural difference between the Chinese system of criminal theory and the German/Japanese system of criminal theory—the Chinese system is composed of three parts: concept of crime, criminal constitution and special forms of crime; while the German/Japanese system is made up of two parts: three-level system of"deserved constitutional elements, illegitimacy and input ability"and special forms of crime. Consider that there is no obvious formation of crime concept, if we want to restructure the system of Chinese criminal theory in the wake of German/Japanese level system system, we should undoubtedly relocate crime concept in the theory system. In order to solve this problem, this dissertation reviewed on the concepts and classifications of crime in other countries, and demonstrated, respectively from legislative, judicial and social angles, the rationality of the current Chinese'small criminal law'model which employs the crime concept determining nature as well as measurements and tries to limit the criminal control scopes, then prove that the concept of crime(including provisos in criminal law) has very important practical values. Now that Chinese penal code has set the macroscopic standards for crime judging by crime concepts and related provisos, and the concrete standards by criminal constitution represented in general principles and the special chapters, then, standing on the point of strict interpretation of criminal law, we have sound reasons to believe that there exist a'crime concept-crime constitution'double-level standard. According to the rigid demand of the principle of legality,the remaining question is how to clarify the relation between crime concept and crime constitution further on the interpretation theory.Following the thought mentioned above, the author uses approaches, such as comparative analysis, historical review, conception analysis and positive analysis etc, to develop this dissertation, which started with a review on Chinese academic discussions about criminal system; then on the basis of comparison between rebuilding theory and completing theory, concluded the controversial focus—whether the crime concept should exist or not; subsequently reviewed and compared the crime concept and classification in the criminal law of other countries, summed up with two general models, that is, the model simply determining crime nature and the model determining both nature and measurement of crime; then proved the rationality of Chinese"small criminal law"model for the time being, this model insists that a behavior might be evaluated by criminal law only when its social harmfulness has achieved a certain extent. Judicial practice of criminal law has largely adapted to this model, while the hatreds to crime which has long deeply rooted in the Chinese public also plays an important part in this model.This dissertation attempts to bring crime concept, which is usually discussed on the principle level in textbooks, back into the view of criminal hermeneutics; using the'crime concept-criminal constitution'double-level standard to reinterpret their relation, emphasize on affirming that both crime concept and criminal constitution should be standard of criminal law—it's not contradictive to perceive different crime standard on different level. The concept of crime and its nature of social harmfulness are not'transcendent-regulation'but the apparent regulation itself, so its judicial practice does not violate the principle of the principle of legality—and its feasible character should be regarded as a sort of regulated judgment. With respect to using general criminal law theory to improve the structure of crime theory, we should insist on substantially interpreting criminal constitution and its elements under the guidance of crime concept.