To Reestablish The Theoretic Framework Of Cirminalization From Consequential Aggravated Criminal

Consequential offence is the basic problem of criminal law is one of thecountries legislation in the existence of a large number of legislative cases,although criminal legislation in all countries in different proportion, but his withheavier legal punishment and so far the dispute continuously increase andabolished or, make its are legal and academic value of all countries. In pursuingcriminal theory of hierarchical system of Germany and Japan, Mr Etc andTaiwan and pursues the four elements of the crime of the theory in Chinamainland, consequential offence in the judicial operation a big difference. Thisis not only because of the internal structure consequential offence existsdifferent interpretation, more in different crime theory system to make theaggravated the explanatory power and apply for degree, the limit of different.A flat crime theory system discussed in the aggravated the ownershipsystem made, without exception, placed it in the theory of crime, butconsequential offence and crime number has nothing to do, in crime number form, whether it’s a sin or broken in legal one crime, even if is the essence of asin that involves two or more than two charges. As competition law and imagineconcurrence made, though all are substantial a sin, but it is at least involve twoor more charges, and consequential offence is only involved a crime, but, all ofthe four elements of the crime of theory but and placed it in the theory of crime,scrapping the consequential offence this belongs to crime theory discussedwithin the system of the essence of the reason is only one: the existing fourelements of crime system can’t accommodate the aggravated committed thiscrime form, and may not be placed it in theory and the theory of punishmentaccomplice were discussed, and therefore,"alert" to avoid crime theory systemof glare, will be consequential offence secret hiding from the theory of crime isprobably four elements of the crime of the theory with trepidation. Civil lawscholars although know to make the aggravated the crime morphologicalcharacteristics, but system position chaos, the scholar thinks, should belong tothe category of constitutive requirements, otherwise scholars think, belong to thecontent of the violations, and scholars think should belong to the category of responsibility theory, and other scholars, not crime theory research within thesystem consequential offence, but in the consequential offence internal crimetheory system, this is the same as in internal research is convicted criminaltheory system, logic exists on the fundamental error, confusing both of thelogical relationship. It is because of four elements of the crime of theory can’taccommodate consequential offence, causing the consequential offenceapplicable chaos and judgment and the dislocation of the applicable punishment,and the same situation in the continental law system of Germany and Taiwanhas there been. Therefore, whether from the rich crime theory system itself orthe point of view of solving practical problems, consequential offence have allarrived must return to within the system. But this return is not simple place. Theconsequential offence set disorder core problem is not straighten out thebehavior and deliberately negligence order, put in the most serious responsibilityclass mistake, because responsibility class is mainly evaluation, is based onobject on the basis of understanding appraisal conclusion and consequentialoffence both subjective fact also have the objective facts, it is be the object of evaluation and not the evaluation of an object, so there will be consequentialoffence in the practice of responsibility class apparently violate the assessmentand evaluation object between object boundary; On the nature of class became anon-existent, because components is illegal type, constitutive requirements arenot present in the content is in nature of class appear abrupt, apparent breach theillegal class judgment is a negative judgment rather than a positive fundamentalattribute. Therefore it must be put in constitutions class, this is not only becausethe constitutive requirements are the object of evaluation, the object of judgment,and because of the nature of constitutive requirements as a form of expression.But in the current system even consequential offence will be placed in theconstitutions class, also didn’t take more responsibility and evaluation of illegalkey, and judicial operation is also showing some degree of chaos.For criminal judicial practice guidance, the supreme people’s court in ourcountry criminal trial first, two, three, four, five court since1999published acriminal trial reference "since, so far, has published80sets, which involvesconsequential offence cases there were twelve, based on the analysis of the twelve cases, and on the basis of the aggravated in the judicial made out existingin the operation of the internal and external system obstacle judgment. Thus willbe consequential offence from the crime evaluation system to promote thewithin the system, will this horse "now in the wild horse" and to "stable", andfor its looking for a legitimate position, so as to ensure the correctness andrationality of the judgment to correctly apply the aim of penalty. But in theprocess of promoting, hierarchical crime theory system exposed the seriousproblems, therefore it must be based on the existing of improved, and putforward its own proposals.This paper is the biggest characteristic of from the perspective of thedevelopment track of crime theory system three classes of the major problems inthe development track of earnestly to grasp problem, under the premise ofaccurately determine their development trend and ultimately positioning, andthus to ensure that crime theory system logic from contact sex and ability tosolve problems, and on the basis of constructing the rational evaluation system.This paper there were seven parts, main contents are as follows: The first part, this paper discusses mainly the consequential offence inpractice and theory and the troubles of the crux of the problem. Based on thecriminal trial reference "1-80sets of published twelve consequential offence ofdetailed analysis, find out the existing problems and causes, and the fourelements of the crime of theory and hierarchical crime theory system on theproblem the explanatory for analysis, and consequential offence should belongto confirm that theory system of internal crime problem and is no crime numberdiscussed. Four elements of the crime of theory to the consequential offence notdecided in the price you’re likelier to judgment and responsibility in the processof judgment will be consequential offence forced into "now in the wild horse,"so far show that consequential offence has not have sex can transform. And willbe consequential offence in the theory of crime on the results of the study willinevitably "trivial", so as to reduce the consequential offence to the attention ofnature of the problem. Then pointed out that, the hierarchical theory of crimesystem of consequential offence system of confusion is lead to position theaggravated made the judgment and responsibility for errors of judgments of the important reason, consequential offence has a unique logic structure, whetherthe pure behavior the price or simple results the price is likely to completeevaluation its illegal, so this is also the hierarchical theory system of crimeillegal class put forward higher request, that is, we must insist on the price andthe results the behavior combination mainly for binary illegal evaluation modelto complete evaluation aggravating make lawlessness. In this sense, the existinghierarchies crime theory system although there are also the kind of problem, butis still has the sexual transformation, and the key is how to reform and in whatway transformation existing hierarchies crime theory system.The second part, mainly for the aggravated make the nature of the increaseresults is analyzed. Four elements of the crime of the theory as a country, usinggiven circumstances and can well solve the aggravated consequential offenceresults problem, without having to use crime theory system, but also simple tosolve the aggravated committed this issue in building the new crime theorysystem is making a mountain out of a molehill too. But the point is that theconsequential offence and sentencing plot severe penalty is not the same level. Four elements of the crime of theory only emphasizing basic components, andhierarchical crime theory system is admitted that the basic components andaberrant constitutions distinction, the variant constitutive requirements withbasic components as the foundation, to change the basic elements in thebehavior of the illegal or and changing the illegal behavior of lawlessness andresults based on the produce, absolutely cannot accommodate the variantconstitutive requirements of lawlessness of the only change the basiccomponents. As the basic components variants, consequential offence must be inthe basic components based on the create new behavior illegal or illegalbehavior and the results illegal and change, so that the consequential offence bebasic components variants of crime. And given circumstances is different, it isonly in the illegal level change, would never change behavior lawlessness, thusand basic components and aberrant constitutive requirements are not anyrelationship, and only punishment and applicable. Based on the consequentialoffence and aggravating the plot of the difference between the principle, theauthor designed writes this chapter, consequential offence and increase from the plot of the concept of their corresponding upper, constitutive requirements andgiven circumstances variants of the relationship between the in-depth analysisand serious reflection. For the four elements of the crime of the advocates of thetheory put forward to solve should not be simple consequential offenceproblems and change of the crime of theory, the author answer is, consequentialoffence is only four elements of the crime of anatomical existing theory ofcorrespond a point, this is the same as the known to accomplice and properbehavior to test the theory of crime system ability to solve problems, can’tproperly solve the problem of the crime of consequential offence evaluationsystem, and it is not likely to be correctly solve accomplice as behaviorproblems.The third part, mainly discusses the constituents just sex. One involving intwo classes and three classes in the debate why insist on three classes, why wantto keep the elements in this paper. In short, the second order said that advocatesof constitutive requirements compliance and nature of class in fact are talkingabout illegal content, a positive into sin from, from a negative from sin, so both is a complete lawlessness. But the essence of the problem is that the secondorder said apparently ignored the price of evaluation object and the objectjudgment of the evaluation principle distinction, but only from the objectevaluation point of view will constitutions class and nature of class2for one,ignore the constitutions class was mainly used as evaluation object and exist. Inclearing the basis of second order defects, the author support three order says,with independent components class existence value, from the Angle of thedevelopment history of academic revealed constitutive requirements classimplement the principle of a legally prescribed punishment and arduous coursebased on the function of the ensured human rights and independent the meaningof existence. From Ludwig Feuerbach to will morsels, the principle of a legallyprescribed punishment from the concept of reality to the establishment of thelegislation, from constituents of pure theory objective to subjective change, thento the objective and subjective combination of binary illegal evaluation system,through the argument illustrates the constitutive requirements to the uniquefunction of human rights protection. The results from illegal to behavior lawlessness, again to behavior and combining the results mainly binary illegalevaluation system, constitutive requirements class independent value andfunction of the ensured human rights mainly through the fight for screeningevaluated object, defined crime types to realize.The fourth part, mainly discusses violations. In the first three system, in theforegoing constitutive factors basis, this paper focuses on the theory of crime isno value shall be the system with behavior or no value as the main body,through the introduction of the "criminal trial reference" in twelve relevantconsequential offence cases, from both theoretical and practical aspects of pureanalysis points out no matter the value or pure behavior is no value is likely tocomplete evaluation of illegal, although scholars have tend to act of no valuedualism, also have the tendency in the results of no value dualism, but in twelvetypical cases in all can’t pass the test, in the face of difficult cases awkwardnessflawed just exposed the above has any geminate tendentious illegal evaluationsystem are not have rationality. Therefore, only by adhering to behavior andcombining the results mainly binary illegal evaluation system to complete evaluation of illegal, it is not the moderation, but based on comprehensiveanalysis and the concrete demonstrates its ability to solve problems on the basisof the conclusion, is the inevitable solution difficulty case and not simplyinvented. However, the problem is not to solve this has, in the paper, the authorintroduced the criminal trial reference "published about killing her husband andwife theft was a near relative light of the case, and contact to Germany" criminallaw "and" criminal law "the Taiwan involving ordinary homicide and killedlineal relatives and sin, indignation such specific charges of murder. Thenpointed out that, just rely on behavior and the results of combining the geminateillegal evaluation system still cannot differentiate between murder and ordinaryhomicide, also can’t distinguish between ordinary homicide, indignationhomicide and killed lineal relatives and sin, Because no matter in the subjectiveaspect, the results of the action is illegal in judgment, the above are nodifference between charges. Since behaviors and the results of combining thegeminate illegal evaluation theory cannot be effectively the charges boundarypoints, that only shows that in the outside there must still be illegal third illegal-illegal conscience, and based on this, further points out, the current civillaw theory of criminal law are common in the judgment of the illegal to ethicstrend has certain blindness, ethical concept of criminal law is not only reflectedin civil law countries legislation in criminal law, but also not be completely arekicked out of the criminal law, the reason is that the law to family ethicsmaintenance can’t just reflected in marriage and family law in fields, as long asadmitted in the processing of family relations actor existing in wrongdoing, sothis offence will be the extent of the amount of difference, if admitted thatfamily ethical limits of this lawlessness have degree of difference, they must nothave the reason for denial in criminal law. Since it is so, reflected in the criminallaw of the illegal judgment, combined with behavior just a combination ofgeminate illegal evaluation system also apparently can’t complete evaluationillegal, in this regard, the author combined with behavior and results mainlybinary illegal evaluation system.The fifth part, mainly discusses in illegal based on the analysis of theproblem of how to determine responsibility. Responsibility is the foundation of punishment, the punishment according to not only lies in the quilt violations,also is intentionally or should pay attention to when violations, criminal lawallows the punishment of the perpetrator but at the same time limit improperpunishment, that is the value of the liability and charm. The lack of commitmentto suppress the criminal law, not only against law countries basic principles, andharm human dignity and freedom of action. Throughout the developmentprocess of responsibility, the experience of free will, the psychologicalresponsibility theory, the standard responsibility theory and functionresponsibility theory four stages of development, eventually to Mainly by theresponsibility,different period of criminal law scholars always trying to portrayspecific responsibility, that is in itself of the perpetrator on subjective imputationof beneficial exploration. Throughout the history of responsibility theory, itsitself is the constant was Impurities mixed withprocess, from the original meaning only fault is intentionally imposepunishment, and later in responsibility class such as gradually to know, such asexpected possibility nature of the content of the value judgment, until the1970s will belong to the penalty punishment of necessity, namely prevention areimplanting responsibility class, this is obviously in gradually diminishingdeliberately negligence in determining the blame the proportion of the. In otherwords, in total fixed liability class, intentionally fault the proportion of the moreand more small, other elements of the proportion of the judge is more and morebig, the actor is subjective and the difficulty of the blame and is more and morebig. The development course of responsibility is actually gradually limitsliability and responsibility of the established range process, of course, the limitis not without any intervention according to, but to the recognition of theessence of the responsibility gradually deepened results. Through the reasonablelimit of liability, the criminal law to achieve the basic rights offender forsecurity purposes.The sixth part, mainly discusses the new crime theory system. Any atheoretical system construction must also with the logic of the internal andexternal sexual contact since the ability to solve problems, the establishment ofthis system is no exception. In the comprehensive analysis of the crime in the system components compliance, richtswitrig and fulfilling sex, and on the basisof every element to find the reasonable system status, which is established byway of relatively perfect crime theory system, relatively simple duty.The seventh part, mainly discusses different sectors to new class type ofcircumstantial evidence that crime system. Civil law and criminal law, mainlyfrom the Angle of administrative law argument, and points out that eachdifferent sectors actually all three classes in support of tacit understanding crimeevaluation system and the four elements of the crime of theory. In criminal lawsense, the existing legislation, judicial interpretation and judicial precedents notconsciously region the illegal and responsibility, with the previous criminal factsinstead of words such as "illegal" a word, is actually avoid "illegal" in thesensitivity. In the field of civil law, based on the analysis of the "ShuaiYingPianBaoAn", points out the necessity of the whole legal order, in the legalsystem under the framework of the big, some seemingly contradiction betweenthe department of standard "mutual extruding", and unity in a big order integralmethod framework. From this layer sense, in the integral method under the framework of order, no conflict of law, only the interpretation of the conflict. Inadministrative area, the state compensation law and the provisions of therelevant judicial explanation again confirm the responsibility for illegal and shalldifferentiate between the assertions of support.