Research On Quantitative Factors In Criminal Constitution

The judge ignored trivial things (Deminimis non curat praetor). For the slightest antisocial behavior, no country may be treated it as a crime. It is the consensus among the countries under the rule of law that the crime has quantitative requirements. From the foreign experience, generally, the criminal laws in foreign countries have not included any quantitative contents for crime. The criminal quantitative requirements are basically showed through the problem how to determine the slight behavior is not a crime:In the procedural law, there provide many paths to solve this problem, such as "Police disposal","Not to prosecute","No trial without complaint","Private prosecution","The judge’s discretion" and so on; In the substantive law, the theory such as the theory of punishable illegally and the theory of social adaption, which provided the theoretical support to solve this problem.In China, the crime also has quantitative requirements, and the procedural law also provides many similar paths. But unlike the foreign experience, in Chinese Criminal Law, there formed a variety of quantitative factors which is written, positive and as a necessary condition of the crime."Vast, Positive and Written" quantitative factors for criminal constitution, that is a unique phenomenon in Criminal Law.First, which belong to the written quantitative factors in criminal law?(1) Criminal quantitative factors contained in the proviso about article13in Chinese Criminal Law. But the proviso should not just consider as a characterization of criminal quantitative factors. Following the judicature logic demand, the proviso, which as apart of criminal judicial concept (article13), should summarize all essential matters which negate the constitution of a crime. Not only about slight illegal (quantitative factors), but also including any other substance negative reasons such as justified acts and expectant possibility (Zumutbarkeit).(2) Criminal quantitative factors is behaved for the provision such as "large amount","serious circumstances" and "serious consequences", which the criminal law definitely prescribes, reflects behavior degree, and also the necessary conditions of the constitution of a crime."Amount","Plot" and "consequences" are truly Chinese characteristics’ Criminal quantitative factors.Second, how to locate the active, written criminal quantitative factors in the constitutive system of a crime? It is difficult to consider quantitative factors as a whole to be the objective punishment conditions. Only the illegal neutral quantitative factors such as behavioral profit, can be taken as the fourth element of crime-the real objective punishment condition; and the "serious consequences" or "heavy losses" which provided in the crime of failing to report about the matter of losing guns and the crime of abusing authority, as the characterization of the illegal degree, is the element of illegal constitutions, because of the particularity of the objective link between such consequences and the behavior, which decides that we cannot revert such consequences to the typical hazard results. The only need to foresee such consequences, without regard to the willing factor, can be identified the mens rea. So it is an atypical illegal element. The rest of the vast majority of the quantitative factors can restore to a typical illegal element such as the identity, behavior and consequences. The quantitative constitutive elements are different from the theory of punishable illegally and the qualitative elements of crime, because of those characteristics in fact and value. The quantitative factors as the criminal constitutive elements (namely quantitative constitutive elements or quantitative elements), is the main content about the written quantitative factors in our criminal law.Third, the quantitative elements’ features in factual surface, is the particularity which the quantitative elements as the written constitutive elements, compared with the foreign criminal law. In foreign countries, the quantitative judgment is almost negative judgment. But in our country, criminal quantitative requirement have transformed to criminal constitutive elements. Therefore, at first, criminal quantitative elements should be the factual coincidence judgment of criminal constitution. This is the quantitative elements’ features in factual surface.According to this trait, the quantitative elements should be the content of subjective knowing, and which is also the requirement of the responsibility principle. And for recognizing mistake about criminal quantitative elements, should be also based on the theory of error, especially in common crime,"The total number of crime" can only solve the accomplice’s objective imputation, and the subjective liability must be individual judged combining with the joint offenders’ subjective knowing. If someone of the joint offenders do not realize or mistake the total amounts, who only assume the responsibility within the range of subjective and objective consistent. When part of the co-perpetrators concealed the proceeds of crime, that can be mostly used as the indirect evidence to prove other co-perpetrators’ recognizes. Perpetrators’ object mistake or method mistake, which do not affect the joint offenders’ accomplished responsibility according to the view of "statutory compliance". When perpetrators implement over the limit or not sufficient, the other joint offenders should just assume the accomplished responsibility in the range of constituent elements coincident. When the perpetrator had new criminal intention, it should be assumed the responsibility by himself, and should not impute to the other joint offenders.And the attempted crime also can be considered as another recognizing mistake problem. Especially when someone take the huge amount of property as the theft target but get nothing, how to determine the applicable punish standard have became the problem.(1) Form the traditional aggravated constitution’s position, the problem can be solved through strictly distinguishing between the target’s amounts as subjective intention and "huge amount of property for theft target" as the "serious circumstances", and to determine the corresponding punish standard according to the former. If the offender’s subjective intention is not clear or cannot prove, it can only choose the basic crime’s legal punish standard.(2) And from the position about distinguish between aggravated constitutions and sentencing rules, the quantitative elements such as "huge amount", which is different from typical criminal constitutive elements and typical sentencing rules, it can be called "quantitative aggravated constitution". For quantitative aggravated constitution, aggravating punishment is just based on the risk of the basic crime. When the basic crime is attempted, it has lost the basis of increasing punishment, and may not be considered as the aggravated offense’s attempted.Fourth, the quantitative elements’ features in value surface, is the particularity that compared to the same "criminal constitutive elements"-the qualitative elements. Both the quantitative elements and the qualitative elements have the function to presume the illegality, but there also have some differences:The criminal qualitative elements embody the criminal behavior’s types, and reflect the boundaries of the public power (to exclude the behavior types which is not provided in the criminal law); But the criminal quantitative elements only show the criminal behavior’s degree, just reflect the division of public power (to decide criminal punishment or administrative punishment according to the illegal degree).The differences above decide the sequence between qualitative elements’judgment and quantitative elements’judgment. Namely the judgment of behavior’s degree must be after the judgment of behavior’s type. Therefore, the theory such as Corporate crime, Common crime, concurrence of articles, which solve the problem of behavior’s type, cannot suitable for the problem of quantitative elements, that is to say, first, we should use those theories to judge the behavior’s type, and then, dispose the problem of quantitative elements to divide the division of public power.Therefore, in corporate crime, no matter the quantitative standard between corporation and natural person is unified or not, first of all, we should use the theory of corporate crime to judge the behavior whether can be considered as corporate crime or not, if not, it is only a natural person’s crime; if yes, it must use the special article of corporate crime to decide the punishment for both responsible persons and corporation.In common crime. First, without considering the quantitative elements, we should judge whether the common "crime" is established or not, and then, according to quantitative elements’ standard, decide to give what kind of public power’s punishment. In this way, many problems caused by quantitative elements in common crime can be solved easily.In concurrence of articles, the structural difference between concurrence of articles and imaginative concurrence shows that the viewpoint that no need to distinguish strictly the concurrence of articles and the imaginative concurrence cannot be established. The identity of legal interest is the substantive standard to judge the concurrence of articles."If the article has an additional stipulation, following this stipulation" is reaffirmed the applicable principles of concurrence of articles. The particularity of quantitative elements indicated that, first, we must use the theory of concurrence of articles to decide the type of behavior, and then according to quantitative elements to determine the division of public powers. Only "cross, double-inclusive relationship", we can use the principle of "serious article is superior to the light article".