Discussion On The Distinguishment Of Crime From Noncrime

Distinguishment of crime from noncrime should rethink the crime essence and constitutive elements of crime. It is appropriate to make the crime essence operable, to consider the constitution of crime in separate phase. It means that the model of the distinguishment is not only a static system, but is a dynamic system, in which special constitutive elements of crime operates respectively in different phases. The value orientation of the distinguishment, not only focuses on the protection of legal interest, but also focuses on the guarantee of human rights. And these principles should be followed, such as a legally prescribed punishment for a specified crime, overall assessment, modesty and restraint of criminal law.Whether an act could be considered criminal; it is necessary to judge in three phases which includes reality behavior, combination of four constitutive requirements, organic of the combination. The two phases behind, which both belong to the theory of constitutive elements of crime, reinterpret the theory based on the tradition.The crime essence in the theories of the crime, is the foundation of logic to define the criminal circles and construct the theories of crime. It fixes the proper value orientation in judicial activities, interpret and renew the contonation of constitutive elements of crime. In all, the crime essence is the start point of logic in distinguishment of crime from noncrime. But severe social harm, as an authoritative theory, is too abstract, vague, subjective. The writer supposes crime is the offense of the social order, the destroy of criminal normative connection, which finally reflects the severe social danger. In other words, the crime essence still is severe social harm, but it specificly manifests the violation of norm of the criminal law and the infringement of legal interest, on basis of invalidity of behavior.Reality behavior, as acrtual premise of the distinguishment of crime from noncrime, is isolated from legal value judgement valuation. It is formal, neutral, descriptive. In fact, it is an instructional image. If the norm is devided into fact norm and law norm, reality behavior exactly is the violation of fact norm. Only if an act is confirmed as reality behavior, that act could be judged through constitutive elements of crime. Reality behavior is in line with the law, but the law is just provide instruction in image. The proposal of reality behavior achieves the guarantee of human rights, the function of behavior, the regulation of actors.The constitution of crime, as general standard in distinguishment of crime from noncrime, judged in separate phases is advisable. But it is unreasonable to treat estimation of rechtawidrigkeit and estimation of liablity self-existent in the concrete infrastructure. It is sure that the constitution of crime is the organic combination of four constitutive requirements, but we need to reinterpret the common sense theory. The judgement of the organic combination varies from the common sense theory. Expectant possiblity and social equivalence is the specific standard of the judgement of the organic combination. So self-defence and urgent danger prevention are the combination of four constitutive requirements, but through the judgement of the organic combination they are both out of the criminal circles.