The Implication Of Institutional Facts In Criminal Judgment

Institutional facts are facts which have opposite meaning with brute facts.In criminal law,fact-finding is a prerequisite before conviction and penalty.When we define a fact,usually two kind of element will be considered,institutional element and brute element.If a fact mostly determined by institutional element,it is the institutional facts.On the contrary,it will be brute fact.In today's system of crime constitution,institutional element is everywhere.The process of convicting is a process of syllogisms—eyes are moving between regulations and facts of life.Inevitably,the institutional element in crime constitution will be brought into the process of fact definition.As a result,the fact in criminal judgment can be institution fact on a high risk.Institution fact has a very important position during criminal judgment.Institutional fact is a sociology concept.It has been put forward by American Language philosopher John Searle.On the other hand,it is brute fact.John Searle defined institutional fact as "the existence of which is relying on human institutions,especially collective intentionality which endows its function.But the function has few relations with its physical characteristics."It can be expressed as X count as Y in context C in a formula way.As mentioned above,institutional element is everywhere in today's system of crime constitution,so institutional fact is very important for criminal judgment.To be specific,the existence of institution fact is based on two reasons:firstly,it's the normative constitutive elements.Normative constitutive element is the kind of constitutive elements which its core of crime is usually described by the institutional elements,in order to confirm the property of this kind.During the procedure of deciding whether a fact is criminal fact,norm evaluation must be used.So there will be institutional fact.Secondly,it's because of the softened of criminal law principles.With the coming of risky society,the risk and danger we met in daily life is becoming more and more uncontrollable.In order to protect the security of our society,public policy must concern more about the security problems.Correspondingly,criminal law should concern more about crime control.The traditional principles of criminal law which we insisted before will be broken down.In other word,basic principles of criminal law are bottom lines which frame a circle the range of crime must be restricted in it,preventing the state power expanding too much.The principles before are like a solid wall.We can never go through it.However,the principles nowadays are like a resiliency net.Things are not always absolute.In order to expand the scale of crime,this resiliency net should be made up by institutional elements.Because of the objective physical way,there aren't many differences between the things "out of the wall" and the things "in the net".But they are totally different things in the normal evaluation way.It is the basic reason of a fact both "in the net" and "out of the wall".If the view of institutional facts existing in criminal law can be accepted,the following problem will be the standard of evaluating.The institutional facts are different from brute facts which are stable.Different people have different thoughts,so they also give different evaluations to the same fact.A very important characteristic of institutional fact is changing constantly.But this characteristic must be abandoned in criminal law.For criminal penalty is the most severe punishment.It always means deprival of people's property liberty even life.If this kind of punishment is based on the fact which is changing constantly,it can barely agreed by most of us.So we provide a standard which called "people all believe" which means only in the situation of all the people or at least most of the people in a community believe it,we can declare someone guilty on it.Actually,how to handle the evaluation elements during criminal judgment is a rough problem.Sometimes we consider it too much while sometimes too little.The instability of institutional fact decides that evaluation elements can be involved more and less.It is like a valve during confirming a fact.If we open the valve wider,the nature of the fact will be affected more by evaluation elements.And it becomes institutional fact.On the contrary,it will be brute fact.As criminal penalty is the most severe punishment,only when the evaluation elements satisfy the standard "people all believe" can we open up the valve making evaluation elements the key element of determining the nature of a fact.Although "people all believe" is an acceptable and useful standard.But we can't deny it as a very abstract standard.It's very difficult to expertise to good use.So we find it a target to compare with.The target fact is a fact which can obviously be convicted.The procedure of evaluating a fact is to find the similitude point between the target fact and the fact to be evaluating.In the prospect of comparing,fact A is violating the law also means fact B violating the law if fact A and fact B are similar in criminal law.And comparing the "believe" with a target to "believe" without a target,the former is more convenience in juridical practice.In the situation of "actio libera in causa",the reason why we punish it is that "people all believe "they invade the legal interest.And the actor is obligate.But in what situation will "people all believe" and in what situation people will not is very hard to decide.With the target-the normal process of crime,the standard of "people all believe" can be visualized to "there is closely connection between acting in cause and acting in result.So the process of crime in the situation of "actio libera in causa" is all the same with a normal one.This will be more persuasive than "people all believe it's guilty".In order to make our opinion more convincing,we chose three specific situations--Possession of crime,non-typical omission and corporate crime.From the prospective of objective physical way,the static possession can hardly invade the legal interest.Since "invading" is a dynamic process.However,from the prospective of normal evaluation way,the possession of drugs,guns or dangerous things of this kind always means there will be a crime or the crime is done.So we can punish it.But only when the possession of something has intimate connection with crimes can we declare it possession of crime.Non-typical omission and action are totally different from the perspective of objective physical view.However,from the perspective of normal evaluation view,they can be the same.So violating the law in the way of non-typical omission must be regarded from the perspective of normal evaluation view.To be specific,only when people all believe non-typical omission and action are same in causing the consequence of invading the legal interest can a non-typical omission be a crime.That a corporation can be the actor of a crime is the effect of institutional fact.We general believe that the action of a company is created from the action of a natural person.The reason why we can create it is that "people all believe".With the development of corporations,its legal status has been the same with natural person.But the Penal Code's Regulation about corporation crime still retains something very objective physical—the penal of the corporation crime still punishes the natural person in the company.This leads to the corporation crime's dissimilation.So we should cut off the "tail" of objective physical thing in corporation crime.We should only punish the company in a corporation crime while the natural person in the company should be punished due to natural person crime.