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Reflection And Reconstruction On The Mode Of Quantitative Requirement Of Criminal Constitution Of China

Posted on:2011-08-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:F J MengFull Text:PDF
GTID:1116360305453727Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In the criminal regulations of Chinese criminal law, there are the basic acts and quantitative requirement of criminal constitution. The regulations of quantitative requirement are the special features of Chinese criminal legislative model. The model of Germany and Japan is'legislation regulates quality, jurisdiction regulates quantity'. We call it the criminal model of jurisdictional regulative quantity. Their criminal laws regulate only the style of crime not the quantitative requirement. The criminal legislative model of China is'legislation regulates quality and quantity', we call it the criminal model of criminal legislative quantity. The general provision of criminal law regulates the concept of crimes and the specific provision regulates the quantitative requirement. Quantitative requirement is a part of criminal establishment. The model is the unique character which is different from other nations, regions and systems. But there are some problems in the jurisdictional practices for the model, such as the unforeseen quantity of crime, the absence of human rights'protection and violation of justice and fairness. Those need us keep thinking and surveying the model.It is the major statement how to deal with the problems, amend it or reestablish it. Basing on the comparative analysis, the author reestablishes the model of jurisdictional regulative quantity. The paper concludes four parts.The first part is the research on criminal basic theory of quantity. The quantity of crime means whether the degree of acts decides the conviction of crime or not. The quantity of crime is not single but multiple including act circumstance, act result and amounts. The quantity of crime depends on the quality of crime, the nature of crime and the adjustment of criminal law. The quantity is not a stable constant but changing. ?The tolerance of criminal law needs the limitation of quantitative requirement. Also the author introduces the models of criminal quantitative requirements and punishment of other nations, which are helpful to survey our model.The second part is the survey of our model of legislative quantitative requirement. The definition of crime in the general provision regulates the quantity and 239 crime accusations describe the quantitative requirements in the specific provisions. The aim of our model is to certain the quantitative requirements of criminal law and protecting human rights. But in the practice it dose not work well.The third part is the solution of the problems in our model of legislative quantitative requirement. The author concludes two ways to solve the problems; one is amendment the criminal regulations of legislative quantitative requirement basing on insisting the existing model. There are some shortages in this way such as delay of laws, threaten to the stability of criminal law, absence of justice, chaos to the social order. There are some advantages including realizing the protection of human rights and reducing the scope of criminal punishment. The other is reestablishment the new jurisdictional quantitative model. The advantages are: 1 .solution all the problems in the new model. 2. realize the social defense and improve the self-limit of individual acts of citizens. 3 .realize the specific justice and improve the conditions of criminal confirmations. 4 .safeguard the personal freedom and property rights. 5 .control the overlarge power of policeman. 6. improve the theoretical communications of our nation and other nations and regions. The shortages are: 1. enlarges the criminal jurisdictional right of discretion. 2 .weight the burden of jurisdictional organs and influence the jurisdictional efficiency. Comparing the two ways, we can know the second way is more suitable to the reality. Justice is the prime value of criminal law. The implementation of specific justice depends on not the legislation but the jurisdiction. The model of criminal jurisdictional quantitative requirements emphasize both the general justice and specific justice, respecting the criminal law and considering the special circumstance, endowing judicial staffs with discretion to implement general justice and specific justice. The part four is the improvement of the model of jurisdictional quantitative requirements in China. the criminal law confirms: a crime refers to an act that endangers the sovereignty and territorial integrity of the state; endangers the system of the dictatorship of the proletariat; undermines the socialist revolution and socialist construction; disrupts public order; violates property owned by the whole people or collectively owned by the working people; violates the citizens'privately owned lawful property or infringes upon the citizens'rights of the person and their democratic and other rights; and any other act that endangers society and is punishable according to law. However, an act that is clearly of minor importance and little harm shall not be considered a crime. We know the act that is clearly of minor importance and little harm should be punished by the administrative organs. The author states that we should establish the model of criminal jurisdictional quantitative requirement, which includes the mirror act in the criminal system. The author prefers to cancel the regulation of proviso in the criminal law and define the formal concept of crime, and improve the system of criminal reconciliation to share and reduce the pressure of criminal judicial organs and implement the value of justice and fairness.
Keywords/Search Tags:legislative quantitative requirements, jurisdictional quantitative requirements, protection of human rights, justice and fairness
PDF Full Text Request
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