The Research Of The Criminal Imputation

Criminal Imputation，which is based on the neo-Kantian philosophy, is a theory of realConstitutive Elements. It is based on Kant’s epistemology, emphasizing the distinctionbetween fact judgment and value evaluation in judgment of conformity of the constituentelements. Fact judgment is the Premise Conditions of value evaluation and value evaluation isa supplement to fact judgment. Criminal Imputation is a new interpretation of ConstitutiveElements. It shows criminal illegal nature of the Behavior which accord with ConstitutiveElements by interpretation of imputation relationship between actor–behavior-results on theCriminal Legal Norm. Criminal Imputation have close contacted with the interpretation of thesubjective and objective requirements in the Criminal Theory System. By Using theImputation theory in study of the subjective and objective requirements, the criminalsubjective and objective Constitutive Elements will have its independent role and significance.On the basis of transformation of our theory about constitution of crime, this paper useCriminal Imputation as a tool of analysis applied to the interpretation of the criminalsubjective and objective Constitutive Elements, Revealing the independent value and meaningof the Constitutive Elements. This paper is divided into two parts, pandect and sub-pandect.The pandect has discussed theoretical Basis and the Basic Connotation of the CriminalImputation. The sub-pandect has discussed the objective imputation and subjective imputation.This paper has seven Chapters.First chapter the origin and development of the Criminal Imputation, has discussed thephilosophic and ethical origin and the birth, development and effects of the criminalimputation. The criminal imputation originated from imputation thought of philosophy andEthics in Germany. German philosopher Pufendorf, Kant, Hegel’s thought on the imputationhad a significant impact on the criminal imputation. Imputation theory can be traced back tothe German common law period. During the common law period, criminal imputation hasbeen divided into the fact imputation and the law imputation, but criminal jurist in that timedid not distinguish between subjective imputation and objective imputation. After theappearance of classical the Criminal Theory System, imputation inclined to the Subjective andimputation turn into imputation ability. Karl Larenz interpreted Hegel’will imputation asobjective concept and put forward the concept of objective imputation. The objectiveimputation is introduced into Criminal Law and located in the class of Constitutive Elements by Honig. The two judgments on correspondence theory of Engisch and the socialcorrespondence theory of Welzel has made important contributions on the criminalimputation. German modern criminal imputation has different theories and doctrine. Amongthem, Claus·Roxin’s criminal imputation doctrine has biggest influence. German criminalimputation theory produces an extensive influence on continental law system country andregion such as Austria, Spain, Portugal, Japan, Korea, Taiwan, etc.The second chapter the comparative study of criminal imputation, through comparisonbetween will imputation and normative imputation, lawless imputation and liabilityimputation, behavior imputation and results imputation, objective imputation and subjectiveimputation, reveal the basic connotation of criminal imputation. According to the differentimputation criteria, the criminal imputation can be divided into will imputation and normativethe imputation. Will imputation depend upon the subjective wills or objective will. Normativeimputation use legal norms as imputation Standard. Under the different meaning of Criminalimputation, it can be divided into illegal imputation and liability imputation. Illegalimputation emphasizes relationship between imputation and illegal acts, establishment of theimputation relationship can corroborate the illegal nature of acts. Liability imputationemphasizes relationship between imputation and actor’s Liability, establishment of theimputation relationship can corroborate actor’s Liability. Criminal imputation can be dividedinto behavior imputation and results imputation. Behavior imputation has closed cooperationwith the conformance of behavior. Behavior can be imputed to actor at the objective, meanthat behavior accord with the Constitutive Elements. Results imputation have close contactwith the conformance of results. Actual results can be imputed to the behavior, indicating thatthe result accord with the Constitutive Elements. Under different interpretative object,criminal imputation can be divided into objective imputation and subjective imputation. Theobjective imputation is a kind of interpretation of objective constitutive elements; thesubjective imputation is a kind of interpretation of subjective constitutive elements. However,the objective imputation is not limited to the objective elements, subjective factors should beconsidered when judging of objective imputation. The subjective imputation is not limited tothe subjective elements, objective factors should be considered when judging of subjectiveimputation.The third chapter the basic meaning of criminal imputation, has discussed the normativebasis of criminal imputation, the relationship between criminal imputation and constitutive elements, the concept and basic characteristics of criminal imputation. The normative basis ofcriminal imputation is the uniform of evaluation norm and determination norm, BehaviorNorms and results norm. The distinction between illegal and liability is the existencefoundation of criminal imputation. Our constitution of crime theory is established on the basisof holistic and comprehensive thinking mode. The elements of constitution of crime do nothave an independent significance and role. The judgment of constitutive elements hascharacteristics of formal judgment and experience judgment. On the overall mode of thinking,it is difficult that the criminal imputation theory be absorbed and used for reference.Introducing relationship of position and distinguishing between illegal and liability is theprerequisite that criminal imputation theory can be introduced into our constitution of crime.Criminal imputation is the ownership relation between actor-behavior-the result on thecriminal norm. Criminal imputation is substantial crime constitution theory. This normrelationship is based on causality relationship between actor-behavior-the result. Criminalimputation relations are divided into objective imputation relations and subjective imputationrelationship. The attaching point of objective imputation is risk; the attaching point ofsubjective imputation is behavior domination and the will of being hostile to Legal Interest.The forth chapter objective imputation, has discussed the position of causality andobjective imputation, the essence and judgment standard of causality, basic judge rules ofobjective imputation. Causality and objective imputation are not independent constitutiveelements, but the internal Relations between behavior and results. Causality is fact judgment,objective imputation is value judgment. Causality is the premise and foundation of objectiveimputation. Objective imputation is the value supplement of causal relationship. Causalityjudgment shall abide by the condition theory according with rule. By making risk, realizingrisk, effect scope of constitutive elements, three judgment rules, behavior and results havebeen explained. Behavior according with constitutive elements is a banned risk behaviorwhich giving rise to results according with constitutive elements. The result according withconstitutive elements is the realization of banned risk which is made by behavior. Effectscope of constitutive elements has proved the behavior and results according with constitutiveelements from opposite side.The fifth chapter objective imputation and the objective element in china, has discussedthe integration of objective imputation and the objective element. Our objective elements ofcrime should be judged on the basis of distinguishing between attribution and imputation. The judgment of attribution precede the judgment of imputation. China’s criminal law theory islack of standards to judge the causal relationship and distinguishing between necessarycausality and accidental causality can not meet the demands of the value judgments. In fact,distinguishing between causes and conditions, can not provide a proper basis for the valuejudgments of criminal law. The condition theory according with rule should be adopted at thejudgment of causality. Objective element of crime, in essence, reflects criminal offenceobjectively hazarding social relations protected by criminal law. This essence of normdetermines the behavior and results according with constitutive elements should be theobjective imputation factor. As an objective imputation factor, the behavior contains theinhibitory risk against the results occurring. The harmful result is reality of the risk that ismade by harmful behavior. Conservation purposes of Criminal Law have examined thebehavior and results according with constitutive elements from opposite side.The sixth chapter subjective imputation, has discussed the problem of the subjectiveimputation in intentional crime. Intention is an important part of illegal act and is subjectiveimputation elements. Intention is not a simple psychological state, but the type of subjectiveand objective factors. In fact, intention not only has fact elements, also contains valuablecomponents. We should discriminate fact judgment and value evaluation at the judgment ofintention. Intention’s value evaluation reflected in subjective imputation. The will foundationof subjective imputation is behavior domination; the norm foundation is the will of beinghostile to Legal Interest. They together determine the value judgment of Intention. Intentionalimputation of results in intentional crime is an important component of the subjectiveimputation. Whether actual results can imputed to intention decided whether actor bear theresponsibility of intentional crime. Compared with theory of statutory conformation andtheory of concrete conformation, theory of Behavior plan is more reasonable at processing thecognition errors of facts.The seventh chapter subjective imputation and our criminal intention theory, hasdiscussed the integration of subjective imputation and our criminal intention theory. Thevalue content of our criminal intention is subjective evil. This subjective evil is embodied inthe consciousness of social harmfulness at the aspects of cognition factor and in the attitude ofbeing hostile to social relationship protected by the criminal law. The "knowledge" in thecriminal intention shall include the understanding of risk relationship between harm behaviorand harmful results. The "hope" and "indifference" in the criminal intention simply cannot understand for mental attitude, and should be regarded as a kind of behavior attitude. Thisbehavior attitude is manifested from the subjective and objective factors of behavior. Not onlysubjective psychological facts, but also objective behavior facts should be considered at thejudgment of "hope" and "indulge". Intentional imputation of the results can provide a newidea at processing the cognition errors of facts.