On Criminal Perpetraitng Act

In any case, the core of modern cirminal law study is based on the concept of actcirminal law, that is to say, we should treat the harm and the results of act as the standard ofdeifning a cirme and its degree, of course such understanding could not and should not denythe importance of she subjective malicious in cirminal sentencing. We think the differencesbetween them means that they play different role in crime deifnition and punishment, the actcirminal law means we should pay attention to all kinds of objective elements of criminalconstitution，or the same importance with the subjective elements. This determines thetheoretical and practical values. In other words the study of perpetrate act can resolve manyproblems through the construction of itself in cirme deifnition and punishment, especially incrime deifnition, i.e. distinguishing crimes on the grounds of the ifilfillment of the cirmeconstitution or not. Instead of concerning the subjective elements, and the responsibilities,Here we should point out that we are not saying that it is not important to exam theRechtswidirgkeit and responsibilities，we are just saying the distinguishing flinction of theaccordance of constitutive elements should not be sotfened. It is necessary to stress the valueof the research of perpetrate act，because such kind of sotfening has happened even incontinental countires. For example, more or less, the argument of compounding theconstitutive elements of Rechtswidirgkeit and responsibilities means the misunderstanding tothe function of the accordance of constitutive elements, which is not a function to determineRechtswidirgkeit without any exception, but a function to determine Rechtswidirgkeitputatively. In China, the ignorance or negligence to the research of perpetrate act is evenworse. We can draw the conclusion from the position of the objective element whereperpetrate act being discussed in the theoires of cirme constitution. Additionally, therelationship of "One being, the others being, one not being, the others not being" among thefour constitutive elements makes the judicature organs be accustomed to infer the being or notbeing of perpetrate act according to subjective elements. This kind of understanding, in my view, contfised the relationship among the four elements，and neglected the independence ofeach element. Thus, actually, although there is a concept of perpetrate act, the research of itcan hardly be developed, or the cognizance of it is constrained. For instance, shooting at astraw man because of thought it a real man, according to traditional Chinese criminaljuirsprudence, now that the actor has an intention of killing a man, and he has done the act ofshooting according to his will, of course he has committed an inchoate crime of killing a manintentionally. Neither the possibilities of actually making a real man dead nor could thisshooting be deifned as the perpetrate act under objective elements in light of the theory ofcrime constitution is completely out of consideration. Maybe we can say that such a researchis of little value, because there are nearly no differences to most cases no matter the judicialorgans paying enough attention to perpetrate act or not. Yet, it should not be the excuse ofignoirng or neglecting theoretical research on perpetrate act. Actually, many theoreticalcreation or breakthroughs of criminal juirsprudence are derived from the disposals of thoseunusual, complicated, or hard cases, such as the theory of expectation possibilities. What thisdissertation wants to do is to get such a breakthrough.While carrying out the research, this dissertation firstly analyzed the concept of act ofcirminal law. Classic criminal juirsprudence says that the category of act is the basis ofcriminal theories. Exactly, said a Japanese criminal scholar, the so-called act, meansperpetrate act under the constitutive elements. It is the concept of perpetrate act that plays aextremely important role among the categories of criminal theories.“No act, no crime". Fromthe aspect of basic cirme constitution (the accordance of the elements of constitution of civillaw tradition), we can say that perpetrate act is the basis of all crimes. Theoires on actscommitted by joint offenders in modified constitutive elements, acts of preparation for acrime, acts of a criminal attempt, and discontinuation of a cirme in inchoate crimes are justoutcomes of deepen and broaden research on perpetrate act.If this proposal could be proved, it would be signiifcant to make a material survey of theconcept or category of perpetrate act. So, the methodology of this paper has two characters:one is, on the basis of the theories of constitutive elements, to interpret perpetrate act through all kinds of cirminal doctirnes; the other is to describe the outlines of perpetrate act from boththe normative and the factual levels. The goal of taking this methodology is to obtain anintegrative understanding of the category of perpetrate act. This paper argues to understandperpetrate act from both the normative and the factual levels. Furthermore, because of theplanar integrative feature of Chinese cirme constitution theoires, the feature of integratingnormative and factual levels would be stressed.Accordingly, the first chapter of this paper introduces all kinds of theoires of act incirminal law and comments on them. Atfer reviewing all this theoires of act, I think the theoryof social act fits well to perpetrating act. Because the social act theory could deal best with thetask of setting a clear limit for cirminal punishment, and that is the very aim of the research ofperpetrating act. What I should point out is that such acognition is only of theoretical values,and it aims at the practical need of doing punishment better through exercising rules ofcirminal law. We should not anticipate explaining all the problems related with cirminal act,such as whether the concept of social meaning is too empty, how to master the criterion of itscognizance，and so on. It is the evidence of needing another theory related with act to resolvethese problems, not the evidence of treating the social act theory as an empty concept. Theaim of the concept of act in criminal law is to define the harmful acts which should’nt be doneaccording to the judgement of ordinary people, for the aim of social protection. Carired theidea farther, the sociality of act, rfom the aspect of imputability of human act, could be statedas a course of certain subject controlling(or should controlling) certain objective conditionsand affecting or influencing certain objects.The aim of this methodology of defining perpetrating act is to demonstrate that theboundary of act in cirminal law is also where the boundary of perpetrating act lies. It shouldbe noticed that not all the acts of social harm should be exercised criminal punishment.Onlythose who have satisfied the requirements of not only social value but also the constitutiveelements are worthy of the judgement of whether it is a crime or not in the sight of value. Onthe ground of human irghts protection, according to the principle of legality, this paper notonly demonstrates the tight relation between perpetrating act and the accordance of constitutive elements, i.e. not any kind of human behaviors of antisocial characters should becirminal punishable, but also argues that human behaviours, beyond constitutive elements, arenone of the business of cirminal law. That is to say, on the one hand, the analyse of thefeatures of act is the same as that of perpetrating act, on the other hand, either of them differsfrom the other. This reflects a kind of step-up relationship in the process of the deconstructionof the concept of act.So, now that perpetrating act is in the constituive elements, the next should be consideredis the issues related with constituive elements. What does perpetrating act mean in theconstituive elements? Some scholars argue that any act is perpetrating act if it satisfies therequirements of constitutive elements, in other words, the so-called act descirbed in theconstituive elements is perpetrating act. This theory is named the formal theory ofperpetrating act. Is it irght?, frankly, it’s a false question. Because it is hard to say aninterpretation itself is irght or wrong unless a premise has been given correctly. The formaltheory of perpetrating act tells us that only an act that satisfies the requirements of constitutiveelements could be called perpetrating act, otherwise, it could not be called perpetrating act atall. However, it is diddicult for the formal theory of perpetrating act to tell whether a realharmful act is of the features of perpetrating act. Some scholars argue a so-called modifiedformal theory of perpetrating act, which is, in my view, nondescirpt. Other scholars argue amateiral theory of perpetrating act. The main idea of it reads: a perpetrating act means an actthat contains practical danger which constitutes a cirme. Such a danger, from the aspect ofharm result,is what the actor attempts to do. So the feature of this act is the possibilities ofsocial harm. An act of real danger, on the one hand, demonstrates the culpability of the actor,on the other hand,demonstrates its objective feature. In most cases, such an understanding isok. But, some times, it is not. For example, because of wanting to kill the victim, the actorasked the actor to take a plane. The actor hoped the plane crashed,but he did not do anythingexcept buy a ticket for the victim. According to this paper, the act of buying a ticket is of nopossibilities of making a person death.The concept of perpetrating act should resolve the following problem concerning how wide its extension is, this also is related with the construction of three stages system cirminalsystem(stufenbau). In other words, we are now facing two types of cirminal system, one is theaccordance of tatbestand, Rechtswidrigkeit, and the responsibility, the other is two stagesof Rechtswidrigkeit, and responsibility. Nevertheless, the two types of system both meanthey should take all social act that is harmful in the eyes of cirminal law, the differencebetween them is the concept of perpetrating act plays different role due to meaning in the twotypes of cirminal system. So what we are now facing is not the difficulties concerning theconcepts of perpetrating act, what we can do is fix the role in different types of cirminalsystem.The following part we want to say is here existing the confrontation between the theoryof subjectivism and objectivism in continental shelf, this absolutely makes the influence withthe understanding of the concept of perpetrating act, thus when we are discussing the meaningof the perpetrating act，we should know its real role in different types of criminal system.，inother words we should know the inside story of the concept of it. In nowadays China, whenwe think what types of cirminal system should be chosen, the subjectivism or the objectivism,the precondition is when we pay attention to the objectivism, we should not applymechanically the concepts of subjectivism.After the resolving of his attirbute of perpetrating act in different cirminal theory, thefollowing we should think about is the distinguish of specification and deed of perpetratingact. Thus we can take such two conclusions, the ifrst is what we are now discussing is in factthe character of the perpetrating act, it is a normal study, meaning its deed after beingevaluating by constitutive elements of crime, yet its normality means its value，it is a standardjudging the cirminality of a thing，the second is that the evaluation means the all and the oneway，the reason is the concept of perpetrating act should reflect the essence of a cirme, thuswhen we are facing such perpetrating act with two or more natural acts, we must know thereexists only one perpetrating act in the structure of criminal constitution.The last part we want to say is while we regard the concept of perpetrating act throughmacro view in the basic criminal theory field, we also have to concentrate on the differentia types of perpetrating acts which exist in special forms，so we begin the study of probablydistinguish of such perpetrating act, such as the actio libera in causa, the discussionconcerning them expresses an important information that there might exists so manydiiffculties while studying，yet if we have a clear understanding about its basic theory, thingsmight be easy resolved...