Research On Theory And Practice Of Zumutbarkeit

On the foundation of the kernel thought—Lex non cogit and impossibilia, zumutbarkeit grew up in Germany by the enlightenment of the "case of Leinenfaenger" at the beginning of 20th century. Owing to the obvious defects of psychological cupability defeated by normative cupability and the impending requirement of resolving the strained relation between criminal law and criminal justice, zumutbarkeit soonly became epochal beloved in the theory of criminal law in continental law countries and had produced positive and profound influence to criminal justice. Since 1990s, the research on zumutbarkeit, which is full of humannity taste, has been paid more and more attention by scholars of Chinese criminal law theory. Abundant research results achieved by scholars of Chinese criminal law theory have not essentially resolved the core question. What is zumutbarkeit? whether is it necessary to borrow zumutbarkeit? How to borrow zumutbarkeit? Whether can it resolve the criminal justice of China? Whether can it be adapted to the theoritical system of ciminal law in China? To answer these questions, we must find the truth of zumutbarkeit and absort the reasonable and common value element from the development of research on zumutbarkeit, and transfer this value element into technical element which is fit for the theoritical system of Chinese criminal law.Beside preface, this treatise is composed of five chapters:the essence of criminal cupability, the historical investigation of the development of zumutbarkeit and its cause, the rethinking of the theory of zumutbarkeit and the absorbing of value element of zumutbarkeit, the normative carrier of ethical value of zumutbarkeit—the excusable motive, the criminal justice of the excusable motive. Concrete contents are as follows:Chapterl:The Essence of Criminal CupabilityThis chapter has researched on the criminal cupability, which is regarded as one of the indispensable elements of a crime in the criminal theory of continental law countries. In my opinion, the viewpoint advocated by scholars of criminal law theory in continental law countries, that the essence of criminal cupability is punishableness is wrong. Because punishableness is the state’s negative evaluation on the person who has committed a harmful behavior, the manifestation of this negative evaluation is not others but penalty. Punishableness does not reveal the true cause of why the person should be negatively evaluated by state, or disclose the essence of criminal cupability. Punishableness is far from the basic meaning of subjective criminal cupability which is served as one of the indispensable elements of a crime. As the core of punishableness, zumutbarkeit is an abstract, vague and empty word which is lack of essential content, so it neither can be confirmed in theory of criminal law, nor can be proved in criminal justice. The essential meaning of criminal cupability, which is defined as punishableness from the perspective of state law, is not true. Only from the perspective of the person who has committed a harmful behavior can we find the true meaning of criminal cupability and disclose the true reason for punishableness of the person. From the development of the theory of criminal cupability, we can find that value elements are gradually absorbed into the content of criminal cupability and the zumutbarkeit is the product in the course of the development of criminal cupability theory.Upon the principle of criminal cupability, we should find the true meaning of criminal cupability from the perspective of the doer. In my opinion, defective personality attitude resulted from the absence of personal effort is the basic reason for the emergence of criminal cupability, and the part of normal personality attitude is the auxiliary reason. Starting from the research on formation of personality attitude, I have researched the formation mechanism of defective personality attitude and the method and content of evaluation of defective personality attitude, and I propose that the core of defective personality attitude, which is the opposite attitude of will to the value protected by criminal law, is the essence of criminal cupability. The relation between defective personality attitude and opposite attitude of will is as follows:the opposite attitude of will is the core of defective personality attitude, the evaluation of defective personality attitude is the guarantee of the scientific and comprehensive evaluation of opposite attitude of will. Only starting from the act which is in accrordance with the indispensable elements of a crime can the defective personality attitude is evaluated. The range of facts or behaviors by which the defective personality attitude is evaluated is wider than that by which the opposite attitude of will is evaluated.In my viewpoint, the indispensable psychological elements contained in criminal cupability are not just subjective and static relation between the doer and the harm of act, but the dynamic and motile psychological activity which manifested in the crime. The content of the traditional criminal cupability does not meet the requirement of the principle of criminal cupability, and fails to explain why the facts or behaviors before or after the harmful act committed by the doer can influence the criminal punishableness of the doer. Regard the contents of traditional criminal cupability as core and foundation, we should integrate all the facts or behaviors which manifest the essence of criminal cupability and influence the criminal punishableness into criminal cupability.ChapterⅡ:The Historical Investigation of the Development of Zumutbarkeit and its CauseOn the foundation of investigating the historical development of zumutbarkeit in criminal theory of continental law countries, I have analyzed the historical cause of its developent. Firstly, through the analysis of the traditional concept of zumutbarkeit in the theory of criminal law, I suggest that we should abandon this abstract, vague and empty concept. Secondly, I have investigated the origination, course of developmen and status quo of zumutbarkeit so as to grasp the general features. Finally, through the analysis of historical cause of the development of zumutbarkeit, I safely reach a logical conclusion that the delimma of criminal justice resulted from the wrong traditional law idea, which believe that an unjust law is still law, is the foundational cause of the development of zumutbarkeit. Influenced by this wrong law idea, scholars of criminal law theory believe that the indispensable elements of a crime are the sufficient conditions to identify a harmful act as a crime. When the practicers of criminal justice practice this wrong idea into criminal justice, they will find that some decisions of criminal cases are very unreasonable. Therefore, zumutbarkeit comes into being and is regarded as the indispensable normative elment of criminal cupability.ChapterⅢ:The Rethinking of the Theory of Zumutbarkeit and the Absorbing of Ethical Value of ZumutbarkeitStarting from the research on the function of zumutbarkeit, I have comprehensively analyzed the basic theory pertinent to the function of zumutbarkeit:the position and applicable range of zumutbarkeit. From the perspective of the function of zumutbarkeit, zumutbarkeit is element of ethical value which crosses the theoritical system of crime and penalty. In order to guarantee the full performance of the function of zumutbarkeit, the applicable range of zumutbarkeit should not be artificially restricted, but should be applied to intentional and negligent act which is in accordance to the indispensable elements of a crime.The theoritical divergence of the basic question of zumutbarkeit, such as its function, position and applicable range, is of major enlightenment to us. In order to guarantee the full performance of the function of zumutbarkeit, two preconditions must be provided—logical perfection of criminal law and ethical character of ciminal law. The technical concept of zumutbarkeit is abstract, vague and empty, the theory of zumutbarkeit is perplexing, the criterion of zumutbardeit is not applicable as well. Therefore, we should not borrow the technical concept and theory of zumutbarkeit, which do not conform to the theoritical system o f criminal law in China and fail to efficiently guide the criminal justice.What we should borrow from zumutbarkeit is its basic value which is common between people in all countries, on which we can transfer this ethical value into technical element so as to make it accommodate to the theoritical system of criminal law in China.ChapterⅣ:The Normative Carrier of Ethical Value of Zumutbarkeit—the Excusable MotiveZumutbarkeit is not a normative element expressly provided in criminal law or one of the indispensable elements of a crime, because any indispensable element of criminal cupability can be found from criminal law and can be proved and mastered in criminal justice. Zumutbarkeit is an element of ethical value which should be manifested in the normative carrier of criminal law before it can be proved and confirmed.The normative carrier of the ethical value of zumutbarkeit is excusable motive, which is generated through the combination of part of the normal personality attitude and objective environment accompanying with harmful act. It is helpful to show the doer’s opposite attitude of will to the value protected by criminal law, and it is the true reason why the doer should be excluded from punishableness or mitigated. The excusable motive exists not only in intentional acts but also in negligent acts which are in accordance with the indispensable elments of a crime.The reasonableness of regarding the normative carrier of ethical value of zumutbarkeit as excusable motive lies in that the excusable motive can explain all the cases which are formerly explained through zumutbarkeit by scholarsof criminal law theory. It not only can fully perform the function of excluding crime or mitigating punishableness, but also can resolve the perplexing theory and practice of zumutbarkeit, such as its position in the theoritical system of criminal law, applicable range, etc.The application of excusable motive in criminal justice is very similar to the judicial practice of adjudicating suits in line with the spirit of "Spring and Autumn" and other Confucianist classics and then sentencing by balancing criminal motive. This method of adjudicating criminal cases is widely applied in the ancient China which can be traced back to Han Dynasty. Although this judicial method has some defects, it is still of great significance to the mordern criminal justice in China. Many criminal suits had been reasonably resolved in this method, which can be easily be mastered. We should learn the positive aspects from the ancient thought of judicial method.ChapterV:The Criminal Justice of the Excusable MotiveFrom the perspective of criminal justice, I have analyzed the judicial practice of excusable motive. There are two aspects—fact and value, by which the excusable motive can be proved in criminal practice. The former is conposed of objective facts and subjective facts. The objective facts are that the objective environment is concrete and the benefits which the doer pursues can be at least tolerated by society. The psychological facts are that the doer must recognize the concrete environment and his or her emotion can not be neglected in the emergence of excusable motive. The value elment is the excusableness of the motive, which can be judged by the criterion of common sense, common reason and common emotion.The excusable motive is one of the circumstances for discretion prescribed by criminal law in China. Through the investigation of the application of excusable motive in criminal justice, we can find that it has not been paid sufficient attention by the practicer of criminal law, which is resulted from two different reasons. According to these different reasons, I have proposed two corresponding suggestions. Through the reasonable and systematic interpretation of circumstances for discretion prescribed in the criminal law of China, We can efficiently perform the function of excusable motive in criminal justice. Finally, two articles should be added to the criminal law of China so as to efficiently guide the practicers of criminal law to apply the excusable motive in the adjugement and sentence in criminal justice.