On The Cultural Perspective Of Theoretical System Of Crime Constitution

Controversies on the Chinese theory of crime constitution are still dividing scholars fromChinese criminal law studies. In a nutshell, debates are mainly focused on how to understandand evaluate the generally held Chinese theory of crime constitution, and how to view andtreat the theories applied in Germany, Japan, America, and other country countries andregions. Marked by the modification of the preparation guidance for the2009national judicialexamination, enthusiasm in the theoretical circle for research into the Chinese theory of crimeconstitution has reached a historically high peak. At this background, probe into the Chinesetheory of crime constitution should by no means be removed from criminal law studies.Current research into the Chinese theory of crime constitution, no matter it is thereexamination, criticism, or support of the traditional four-element constitution theory, or theintroduction and justification of the theories from Germany, Japan, Italy, and America, is, inessence, a form of cultural conflict, especially that between different criminal law cultures.The criminal law theories and systems of crime constitution from different countries allembody their own particular national cultural characteristics; therefore, the universalityconcerning quite a few issues in criminal law theories across different countries should notovershadow their particularities. Meanwhile, in view of the relatively scant attention paid tocriminal law culture in China, the author views this study as an attempt to decode thecontroversies over the Chinese theory of crime constitution, to provide theoretical guidancefor its development, and to promote the co-existence of different theories of crimeconstitution in China.Apart from the introduction and conclusion parts, this paper contains five chapters, andis230,000words long.Chapter one is on the cultural implications of different theories of crimeconstitution. In other words, this chapter will help expose that the system of crimeconstitution actually exists as a cognitive system; it is not only a system of criminal lawstudies, but also a crime recognition system and a theoretical tool. Though this study applies acultural approach, but it is note-worthy that the term “culture” is complicated as well asabstract, thus the cardinal task is not about how to define, but about how to understand it.Culture by itself is historical as well as dynamic, universal as well as national, diversified as well as blended, heterogeneous as well as homogeneous; it can be passed on to a nation’syounger generation, and can be mixed with that from another nation. Culture and civilizationare both legacies of human society development; however, while culture is developedsimultaneously with the development of human society, civilization is the product of humansociety development at its higher stage; while culture reflects the manners in which humanbeings explore and transform the objective world, civilization shows to what a degree humanbeings are doing so. As a carrier of culture, laws reflect the culture of a certain country ornation. Investigation about the criminal law studies, or even only about crime constitutionfrom a cultural perspective, is actually the interaction between cultural studies and criminallaw studies. Crime constitution is cultural in its theoretical essence and its practice as well; or,culturally, just like other cultural creation of mankind, it is a cognitive tool that human beingsadopt to understand the objective social phenomenon called “crime”. Theoretically speaking,the crime constitution theory is a concept based on criminal law stipulations; it bridges peopleand their social behavior and serves as a means or model that people use to understand crime,thus making the crime stipulated in laws a reality in people’s daily life. Identification ofcrime means to recognize and define it. Major standards applied in the process include: does itconstitute a crime and what a crime it is? Signs are a means of cultural manifestation and thecrime constitution is itself a cultural sign, a cultural phenomenon developed in people’sunderstanding of crime.Chapter two deals with the evolution of different crime constitution systems from acultural angle. This part begins with an analysis of the evolution of the crime constitutionsystems in the civil law system, Anglo-American law system, law systems of Soviet Unionand China, so as to find and decode the cultural root behind the evolution. As majorrepresentatives of modern criminal law studies, the crime constitution systems from Germanyand Japan are profoundly influenced by modern western philosophy. The classical crimeconstitution system is born out of the philosophical idea of positivism; the neo-classical crimeconstitution system is based on Neo-Kantianism, while the Skopos theory system is closelyconnected with phenomenology. Meanwhile, the shining achievement made in crimeconstitution system in criminal law studies in Germany is also partly due to the typicalGerman character that favors philosophical meditation and the profound academic atmospherefor philosophical exploration there. While the crime constitution from the civil law systemsrelies on stipulations of the criminal law, and especially the specific provisions of it, the British and American systems of the typical common law system are rooted in real-lifejudicial practice. Judging from methodology, crime constitution should be in line withordinary people’s way of thinking; this is determined by the nature of criminal judicature.Under the four-element theory of crime constitution, a collective thinking mode, and arealistic judging criterion are both applied in this system, which is demonstrated by the crucialrole that social harmfulness plays in the Chinese criminal law. The three-tier system isevidently marked with a scientific preference; this is reflected in its deliberate logic thinkingand its caution towards state power. The two-tier system applied in the Great Britain andAmerica stresses practice and it matures through absorbing nutrition from real-life judicialpractice; it focuses on litigation and provides the defendant with a chance to give reasons toeliminate responsibility; by setting the accuser directly against the defendant, it is highlypractical. These traits make it different from the civil law system.Chapter three takes up a comparison between different crime constitution systemsfrom a cultural perspective. The author begins this chapter with an investigation into theinner structure of different crime constitution systems, so as to reveal the cultural basis fordifferent structures. The four-element constitution theory is at its core related to the Chineseculture, because the Chinese ways of comprehensive thinking and factual judgment mixperfectly with the four elements. Similarly, the advanced legal education, a huge communityof legal scholars, and a delicate culture have come together to give birth to the three-tier crimeconstitution system. The stress laid on judicial practice by the common law system also laysthe foundation for the two-tier crime constitution system. The structural arrangement of eachcrime constitution system has its own internal logic. For instance, the four-elementconstitution theory system emphasizes on the law’s actual judgment and puts the socialharmfulness theory in the first place; the three-tire crime constitution system highlights itsdelicacy and structural logic; while the two-tire system mainly stands out for its simplicity,practicability, and its value in guiding real-life judicial practice. Meanwhile, the differentstructural arrangements of different crime constitution systems also embody the systems’innate functions. There has been a long-standing debate over the clash and balance betweenthe system’s protective function and security function; this issue actually concerns theconcept of different legal cultures and lies at the centre of legal culture. The obvious andlong-standing conflict between the protective function and security function lays thefoundation for criminal law theory. Views towards this basic conflict have been a major focus of academic debates. Many people criticize the four-element constitution theory on the groundof its scanty attention to the security function while the protective function is guaranteed;however, it should be made clear that the realization of the security function is already beyondthe reach of the crime constitution system. It is true that the two functions should be in abalance, but the three-tier theory has to a certain degree overstated the criminal law’sfunction in securing human rights. In a nutshell, as a cognitive system, the crime constitutionsystem should not be expected to fulfill all functions.Chapter four is devoted to a second look at the debate over the Chinese crimeconstitution system from a cultural perspective. This part’s mission is to prove that thedebate over the superiority between the Chinese four-element theory and the three-tire theoryapplied in Germany and Japan is, in essence, a conflict between different legal cultures.Therefore, China is now facing a decisive choice between transplanting and inheriting. Theadvanced development of criminal law theories, the forming of an academic group, and theexpansion of the research scope have come together to set the general background of thedebate over the Chinese system of crime constitution. Since the1980s, the research into thisfield has been generally focused on: what elements to include, how to rank these elements inimportance, and whether or not China should carry on with this system, with each schoolrepresented by notable scholars. Aided with basic theories of legal culture, one can see thatthese controversies, deep down, derive from the conflict between different legal cultures;therefore, they become the realizations of cultural conflict in the field of criminal law studies.The debate is not only a reexamination of the Chinese criminal law theory, but also acontinuation of the theoretical debate since the Post-Qing period. Misunderstandings aboutthe generally held Chinese system of crime constitution have led some people to choose avague object for criticism, to apply subjective criteria, to use untrue materials for argument, orto adopt an improper way of criticism; these misunderstandings should be removed. Thedebate certainly is meaningful in that it is driving the development of criminal law studies, isprompting the formation of the Chinese school of criminal law studies, and is propelling theestablishment of a sound academic atmosphere.Chapter five is a look into the future of the Chinese system of crime constitutionfrom a cultural perspective. Here the author begins with his views on how to improve theChinese four-element system of crime constitution and goes on to give suggestions on how tomake an objective and rational evaluation of foreign systems. China will enter into an era that sees the co-existence of diversified theories; thanks to the co-existence of diversified cultures.Diversification of the crime constitution systems is already a fact, and its occurrence is alsotheoretically inevitable. The good news is that the Chinese experts and scholars are tirelesslydoing their part to bring about this kind of diversification. It is true that each theory of crimeconstitution is by itself a product of its own culture, and the Chinese and foreign crimeconstitution systems are all fit into their own cultural context; for this reason Chinese scholarsshould gain a rational knowledge and make an objective assessment of foreign systems ofcrime constitution. A long-lasting and healthy academic environment should be created toguarantee the sound development of the theory of crime constitution.