Research On The Evaluation Of Criminal Law On The Factors Of "Post-crime" Actor

After the behavior conforms to the constitutive elements of the crime,the guilty attitude of the actor and the externalized post-crime behavior are the concentrated expression of personality after the crime.In essence,the criminal law evaluation of the post-crime actor factor is the question whether the post-crime personality can affect the conviction,sentencing,and how to affect it.For a long time,such as Preparation for a crime,attempted crime,accomplished crime and suspension of crime are regarded as the forms of termination of crime,any behavior after the event is unlikely to affect the "terminated" behavior of social harmfulness judgment,which can only be used as sentencing circumstances that impact the prevention of punishment,It was almost unquestioned.However,based on the characteristics of stability and consistency of personality,the evaluation of personality seems to go beyond the time division before,during and after the crime.So,there is a logical paradox between the view that the independent status of the post-crime actor factor in criminal law and the above theory,because of the independent effect of personality on conviction and sentencing.Especially in the trend influence of legal realism,the criminal judicial reform in our country advocates "problem-oriented" multiple dispute resolution mechanism.The criminal reconciliation,greater confessed forfeit,restorative justice and a series of criminal judicial innovation make the "negotiations-recovery" pattern outline in criminal justice.In this context,the role of post-crime actor factors needs to be repositioned.The fact that the legal interest recovery or the expansion of legal interest infringement under the action of personality can be the content of the establishment investigation of crime.Under certain conditions,the legal interest recovery act plays the function of decriminalization or non-penalization outside the elements of the crime constitution.In terms of sentencing,the act of legal interest recovery can become the plot that affects the liability penalty.Based on the hierarchy of penitent form,the post-crime attitude and penitent expression also present the hierarchy.In order to realize the comprehensive evaluation of post-crime plot,it is necessary to reasonably determine the evaluation scope of post-crime actor factors,which make the evaluation legalized,stratified and standardized.From the perspective of the realization of the social relationship restoration of criminal law,this paper explores the function of post-crime actor factors in criminal law,excavates thetheoretical basis of post-crime personality influencing conviction and sentencing,and carries out the hierarchical framework of criminal law evaluation on the basis of systematically sorting out the types of post-crime actor factors.Finally,this paper puts forward some suggestions to improve the evaluation of the post-crime actor factors in criminal law and the sentencing guidelines.In addition to the introduction,the paper is divided into seven chapters.Chapter one is an overview of the factors of post-crime actor.First of all,based on human subjectivity to inquire into the nature of crime,so as to develop the importance of personality evaluation,the actor's behavior after the crime is also its internal personality and subjective malignant externalization.Then,on the basis of affirming the independent role of personality,the concept of post-crime actor factor is explained.That is,personal traits for the person with the stability characteristics of physiological factors,psychological factors and social attribute,which influence conviction or sentence after implementation conforms to the component elements of a crime,before criminal responsibility shall be determined.In essence,it is the organic unity of the actor's evaluation and post-crime behavior evaluation.Finally,through the comparison with similar concepts such as personal danger,non-punishable behavior after the crime,criminal suspension,aggravation of circumstances,sin or subjective maligiousness,and the subject of the crime,it expounds the basic implication of the concept of the actor factor after the crime.The second chapter is the status quo and types and the essence of criminal law evaluation of post-crime actor factors.By summarizing the status quo of post-crime actor factor evaluation in the current text norms and judicial practice,as well as the classification subdivision on this basis,this paper aims to uncover the veil of post-crime actor factor evaluation of criminal law and lead to the discussion of its essence.Overall,the evaluation of the post-crime actor factor showed a trend of escalation and intensification,even break through the traditional criminal law theory of cognitive orientation,that is,the influence of post-act on social harmfulness and personal danger can be seen in normative texts and can be applied in different criminal justice modes.Under certain conditions,it is endowed with the function of conviction.However,the legal interest recovery phenomena have not been enough attentioned,the judicial practice in our country has not yet formed hierarchical evaluation system of confession and repentance,confessed attitude influence sentencing uncertain,limited scope of criminal reconciliation,guilty plea repeat evaluation,and there is a lack of special evaluation criteria for juvenile penitence performance,which points out theinsufficiency of criminal law evaluation of the factor of the post-crime actor.In the context of criminal law in China,the post-crime actor factor evaluation can be divided into the types that affect the social harmfulness,the types that affect the personal danger evaluation and the types that are affected by policies,which play the roles of supplementing the constitutive elements,indicating the personal danger,influencing the degree of infringement of legal interests,and implementing the criminal policy of combining leniency with severity.Ontologically,the criminal law evaluation of the factors of post-crime doer is a comprehensive evaluation of the doer,which is a judgment of the personality,and a confirmation of the actor's normative realistic attitude,and plays a supplementary and auxiliary role in the judgment of social harmfulness.Therefore,the essence of criminal law evaluation of post-crime actor factors is: the unity of behavior and actor evaluation,and reconfirmation of actual and potential hazards;to realize the unification of penal punishment and prevention and repair functions;and it is a concrete embodiment of the criminal policy of combining punishment with leniency.Chapter three expounds the predicament of criminal law evaluation of post-crime actor factors,aiming at the problems existing in practice and theoretical dilemmas.The following problems exist in the evaluation of the factors of post-crime actor in judicial practice in China.Such as,Firstly,the evaluation shows fragmentation of "case by case";Secondly,the evaluation is "planar";Thirdly,there is a lack of attention to the effect of the legal interests recovery on conviction;Fourthly,the atypical and discretionary characteristics of the actor factors after the crime caused quantitative problems;Fifthly,there is inadequate legislative response.that is,the provisions of post-crime circumstances in the sentencing guidance are insufficient to evaluate the legal interests recovery behavior,and the lack of standardized guidance of the status of post-crime attitude in sentencing.In the theory of criminal law,there are also disputes about the functional orientation of the evaluation of the post-crime actor factor,which are mainly reflected in the differences on whether the post-crime doer factor can affect the conviction,and whether is limited to regulating the benchmark punishment.Chapter four aiming at explaining the practical necessity of the evaluation of the post-crime actor factor.At the macro level,the trend of legal realism and the development of criminal law on the actor evaluation determines the importance of the actor factor evaluation.Legal realism means that law is not only an operable technology to solve political,economic and social problems,but also a link between text and reality under the humanistinterpretation paradigm.At this time,the value of the subject status of human rights,personality,humanity,human relations and other actors is highlighted in the evaluation of criminal law.Because of a complementary fusion path obtained by scholars,In the model of behavior plus personality,as a result of personality is in the selective position of conviction elements or auxiliary status,except for the influence of sentencing,post-crime actor factors can play an auxiliary function in conviction.At the micro level,the extraterritorial criminal law mostly adopts the dual mode of juridical punishment and security punishment,and forms a pluralistic post-crime personality assessment system.Specifically,such as the delayed declaration system of penalty,personal release of the crime,the exemption system of penitence,the consultation system of confession and sentencing,and the system of personality survey report before sentencing,etc.,further reflect the attitude after the crime and the penitence performance is the premise of lenient treatment of the actor.Under the mode of "restorative and consultative" criminal justice,the personality of confession,repentance or cooperation with the law is the precondition of decriminalization or decriminalization of minor crimes.The fifth chapter aims to find out the theoretical basis of the influence of the factors of the post-crime doer on the conviction.In terms of the expression that affects the conviction,the judgment of the factor of the post-crime actor can make the behavior that is on the edge of the standard of filing a case go out and enter the crime,or its externalized post-crime act be directly classified by the legislator as the constitutive element of the crime.Because of "or theory of combination" as the basic position of handling the relationship between the act and the actor,the actor factors affecting the conviction need corresponding restrictive conditions,in addition to Criminal personality,but also need to be close to the crime of entry and exit of the critical point or the plot of minor harm and so on.The reason why post-crime performance can influence the conviction under certain conditions is not only the macroscopic reasons such as philosophy and culture,but also the microcosmic foundation of policy and jurisprudence as well as jurisprudence.On the macro level,the dialectical materialism epistemology says that the degree of legal interests violation judgment is the process of dynamic and dialectic,due to that it is offset by the remedial action of recovery of legal interest afterwards;Secondly,The ideological trend of intersubjectivity philosophy emphasizes the communication and consultation between subjects and provides a "consultative and restorative" evaluation perspective for the settlement of criminaldisputes.The traditional concept of "harmony",as well as the need of "common sense" integrating emotion,reason and law also provide a legitimate basis for the conviction of the influence of post-crime behavior.At the micro level,the policy orientation of combining leniency with strictness,as well as the expansion and invasion of the responsibility class by preventive factors are the policy and legal basis for the post-crime behavior to affect the conviction.The promotion of the concept of recoverable legal interest,the confirmation of the function of personality and the provisions of "proviso" provide a reasonable basis for the interpretation of the impact of post-crime behavior on the conviction.Since the post-crime actor factors influencing the convicted and their externalized behaviors conform to the formal characteristics of the objective penalty conditions,and the essence which has been played as the penalty hindrance is also consistent with the objective penalty conditions,the post-crime actor factors influencing the convicted should be attributed to the objective penalty conditions.The sixth chapter tries to find the theoretical basis of the influence of the actor factors after the crime,and then explores its stratification.The doctrine of syncretism is the rational choice of modern criminal law as the basis of its justification.In addition,"post-crime performance can affect the judgment of the severity of the crime","the objective needs of individualized sentencing","to meet the practical needs of restorative justice and the construction of a pluralistic dispute resolution mechanism" also provide a justifiable reason for post-crime actor factors to affect the sentencing.In terms of sentencing,From the idea of standardization to the direction selection of stratified evaluation,and then to the path prospect of stratified evaluation,the practical logic of stratified evaluation of the actor factors after the crime is comprehensively explained in this paper.The realization of comprehensive evaluation is the necessary to reasonably determine the scope of discretionary plot.The causes of personality,post-crime normality,social influence,public reaction,public anger,and the quality of defendants unrelated to criminal acts should not be included in the scope of actor factor evaluation.The post-crime actor factor evaluation needs to reiterate the value proposition of "limited liability prevention" of synergism,and with the influence of post-crime behavior on the choice of legal penalty,the determination of liability penalty,the determination of preventive penalty,and the declaration of penalty,there are different levels.However,the current digital evaluation pattern of rigid forced theformation of "hierarchical evaluation plus quantitative evaluation",reflections on basic method of sentencing also promotes the post-crime actor factor hierarchical structure.In the way of hierarchical evaluation,the precondition of the evaluation is the plot identification which affects the liability penalty and the preventive penalty.Under certain conditions,the recovery of legal interest can be regarded as the circumstances that affect the liability penalty.In minor crimes,the recovery of legal interest can even be considered as a matter to determine the starting point of sentencing.The post-crime act of expanding the infringement of legal interest and the remaining facts of the conviction can be taken into account when determining the benchmark punishment.For the plot of prevention,we must first correctly distinguish the normal state after the crime,based on the probability of recidivism of the behavior of the person after the crime,according to the order of "from heavy to light".In short,when evaluating the facts reflecting the attitude of post-crime,it is not possible to prevent the criminal situation from being used.It is necessary to correctly judge the nature of the plot after the crime based on the facts of the case.The seventh chapter is the legislative perfection and prospect of the criminal law evaluation after the crime,which is based on the post-crime behavior factor presented as a three-dimensional evaluation process,to supplement and improve the legislative level on the post-crime behavior evaluation.First,the concept of “evaluation-recovery” is advocated under the premise of changing the evaluation concept and respecting the multi-evaluation model.If the crime is minor,it is possible to set a hierarchy of judgments(or the cause of penalty hindering),based on the evaluation of the post-actor behavior factor,to exclude the situation that does not require punishment;in terms of sentencing,besides the content of "punishment" and "prevention","recovery" is added to the purpose of punishment.Secondly,to improve the evaluation system of post-crime behavioral factors,increasing the guidance and standardizing the applicable provisions of the discretionary circumstances,which make the post-crime attitude affect the sentencing standardization and legalization.To improve the evaluation provisions of the Common Crime Sentencing Guidance on the post-crime plot,so that Being able to respond positively to the practical needs of a diversified criminal justice model,the post-recovery behavioral recovery type is an independent sentencing episode.Finally,on the basis of the traditional judicial model,with the establishment of an alternative dispute resolution mechanism,the systema of post-crimebehavior factor evaluation with Chinese characteristics is formed.