Research On Allocation Of Quantitative Factors Of Crime

Guided by the thought of quantitative equilibrium and quantitative factors position in the constitutional system of crime,the scientific allocation of quantitative factors in the constitution of crime is the key idea of this paper.Recently,amendment of Criminal Law in China,there are many amendments involving quantitative factors,especially the conviction and sentencing mode of "plot plus amount",which brings about a series of new problems in the allocation of quantitative factors.As a key index to regulate the relationship between crime and punishment,the value of this paper lies in how to balance the quantitative factors around the system of crime constitution,to coordinate the hedging between the criminal law of actors and the criminal law of actors,and to reconcile the tension between human rights protection and social defense.Although the academic circles of criminal law have studied the existence or abolition of quantitative factors and their status in the system of crime constitution,there are still some weaknesses in the research of the connotation,allocation criteria and the relationship between quantitative factors and the nature of crime,especially the scientific allocation of quantitative factors around the elements of crime constitution.Firstly,this paper makes a normative analysis of quantitative factors,clarifies the connotation,attributes,scope of existence of quantitative factors and the relationship with the nature of crime,combs the imbalance of the allocation of quantitative factors in an all-round way,discusses the allocation idea and allocation benchmark of quantitative factors,and then studies the horizontal relationship between quantitative factors and the elements of crime,such as responsibility,mode of conduct,object of conduct,etc.The scientific way to realize the balanced allocation of quantitative factors.In addition to the introduction and conclusion,this paper has six chapters,about 210,000 words,which are summarized as follows:Chapter 1: Standard analysis of quantitative factors of crime.Quantitative factors refer to the constitutive elements that determine the constitution of crime and reflect the degree of infringement or threat to legal interests.The elements of constitutive elements of crime are divided into the elements of the nature and quantity of the establishment of crime.Quantification of conviction is the first quantification,and penalty quantification is the second quantification.Quantitative factor is actually the element of quantity of crime,which belongsto the essential element of constitution of crime.The nature of a crime is the logical starting point of conviction and determines the nature of a crime.Quantity is the logical extension of conviction and determines whether a crime is established or not.They are exterior to interior,but it does not mean that there is a huge gap between them.Quantitative factors reflect the amount of the whole crime.Acts themselves,the subjective viciousness of the perpetrator,the way of action,the object of action and so on all reflect the degree of infringement of legal interests,rather than just the harmful consequences of the act.But once the quantitative factors are independent from the constitution of crime,they are relatively independent,and their essential characteristics can only be objective attributes,otherwise they will lead to the ambiguity of the criteria for conviction.Chapter 2: Examination of the imbalance of quantitative factor allocation of crime.In recent years,the function of social governance of criminal law requires that the standard of criminal in the amendment of quantitative factors of criminal law should be changed from simple amount standard to "plot plus amount" standard.Some crimes should be amended from consequential offence to plot offence or dangerous offence.Dangerousness of the person has entered into quantitative factors.The role of the quantity of the crime of implication has gradually become prominent.The advantage lies in the pluralism and comprehensiveness of the evaluation of behavior,but also in giving quantitative reasons.It blurs the nature of quantitative factors and quantitative benchmarks,confuses the conviction and sentencing circumstances,easily leads to repeated evaluation of penalties,and improperly enlarges the criminal circle,resulting in instrumentalization of criminal law.Due to the diversification of the evaluation criteria of quantity,there exists a quantitative imbalance among individual crime,class crime and different charges in the allocation of quantitative factors for conviction.The fundamental reason for the imbalance in allocation is that the balance between crime and punishment has changed from the single balance of retributivism and purposivism to the dual balance of accountability.Allocation of quantitative factor is based on the disputes between the allocation of legal interests infringement and the need of social prevention.Quantitative allocation according to "harm" is based on the retributivism of criminal law,reflecting the fairness of criminal law;Quantitative allocation according to "need" is based on the need of social governance of criminal law,reflecting the utilitarianism of criminal law.Justice and utility are two indispensable aspects of the allocation of quantitative factors.But the quantitative allocation according to "crime" is the foundation,and the quantitative allocationaccording to "need" is the supplement.At the same time,the allocation of quantitative factors according to "need" will aggravate the penalty to the perpetrator,and it must be restricted.Chapter 3: The allocation standard of quantitative factors of crime.Because of the imbalance of quantitative allocation,it is necessary to determine the allocation standard of quantitative factors.Due to the broad standard of social harmfulness,the introduction of quantitative factors into personal dangerousness will lead to the abuse of penalty,and the infringement of legal interests emphasizes the objective standard of the punishment of acts.However,in the context of risk society,criminal law needs to be moderately advanced and preventive factors should be added appropriately.Therefore,the theoretical basis of setting quantitative factors should be the infringement of legal interests under the amendment of preventive thought,that is,based on the infringement of legal interests,embedding the necessity of prevention for allocation.The principle of balance between crime and punishment requires the establishment of a unified allocation standard of quantitative factors,namely quantitative base.Quantitative Standard,as a quantitative reference system for conviction,reflects the equivalence of punishable degree,without considering other additional factors for the time being.Quantitative benchmark can be visually expressed as a "yardstick" to measure the amount of conviction.The objective illegality is not easily changeable and intuitive,which determines that it should be used as a quantitative factor benchmark.The background of the coincidence of amount and plot is the pluralism of legal interest protection and the pluralism of evaluation of quantity.They are used as evaluation tools to measure the amount of infringement of interests.The amount and plot represent the weights of different weights.However,the amount of the plot and the discussion have not been fully implemented.The plot is mostly a sentencing rule rather than an aggravation constitution of the crime.There is still a problem of attaching more importance to the amount than to the plot in the allocation order.Therefore,when "half the amount" and "half the plot" coexist,they should be regarded as the conviction plot together,and the remaining conviction should be unified as the sentencing plot.Chapter 4: The guilt of crime and allocation of quantitative factors.As a factor influencing conviction,the relationship between guilt and quantitative factors is inherently tense.It is controversial whether to allocate quantitative factors within the scope of criminal guilt or outside.The principle of unity of subjective and objective in criminal law in our country belongs to the lower stage of the development of the theory of guilt,which haslimited the allocation of quantitative factors.In order to meet the needs of social public interest and situation policy,quantitative factors will break through the boundary of the principle of unification of subjective and objective.According to the theory of the development stage of the theory of guilt,the principle of unification of subjective and objective does not mean that the scope of guilt is violated.In order to meet the needs of the development of criminal law,we should establish the theory of liability supplemented by the necessity of prevention,that is,to construct quantitative factors based on the crime and necessity of prevention.However,in order to prevent abuse,as a preventive quantitative factor,we should restrict the charges,amount offset and other aspects,especially to prevent the arbitrary addition of subjective elements.Quantitative factors can only belong to the elements of constitutive elements of crime in the four-elements criminal constitution system;under the hierarchical criminal theory system,the quantitative factors reflecting objective harm are classified into illegality,the quantitative factors reflecting the conformity of constitutive elements and the responsibility of crime may be reduced to the elements of constitutive elements of crime,and the quantitative factors that cannot be reduced to the objective punishment conditions.Most of the quantitative factors are the objective punishment conditions.It belongs to the elements of constitutive elements of crime.Chapter 5: Style of criminal behavior and allocation of quantitative factor.Taking bribery crime as the representative,although the conviction and sentencing mode of "plot plus amount" has been established,the plot plays the role of downgrading to crime and improving sentencing,but the conviction has not played the same role as the amount,or even been ignored.The quantity in the establishment of a crime includes both the quantity of evil acts and consequences,both of which play a role as the threshold of a crime in the establishment of a crime.However,the essential function of criminal law is to protect human rights against crime,rather than social governance tools.Only the behavior that reflects the infringement of legal interests should be included in the quantitative category,and only the post-crime behavior that reflects the need of prevention can not reflect the amount of crime established.When the quantitative factors are allocated according to the mode of action,the mode of action with the need of legal interests infringement and prevention and the mode of action with the need of mitigating prevention can be used as the conviction plot,but the mode of action with the need of prevention can not be used as the conviction plot.Because of the unreasonable setting of the amount standard or the unreasonable type of behavior,thebehavior that was not considered crime was recognized as crime,or the behavior that belonged to a crime was not recognized as crime,which was called the phenomenon of the fusion of the nature of crime.The fusion of crime and nature can not be solved by the theory of competition of laws and regulations.The only reasonable way is to set the standard of reasonable crime amount,compare quantitatively within a crime and between similar crimes,and allocate quantitatively factors reasonably.Different from the competition theory of foreign articles,the criminal law of our country must be discussed under the background of quantitative factors.The disputes in judicial application are essentially caused by the nature of crime,and the misplacement of quantitative factors results in the imbalance between crime and punishment.If we adopt the method of combined punishment for several crimes,it will cause the imbalance between behavior and quantity,and if we take a heavy punishment,it will cause quantitative fluctuation.Only by adhering to the principle of comprehensive evaluation and prohibition of repeated evaluation,taking into account the integration of behavior and quantitative factors,setting reasonable standards for the amount of conviction,and eliminating the overlapping parts of the overlapping parts before concurrent punishment,can we achieve full evaluation and balance between crime and punishment.Chapter 6: Objects of criminal behavior and quantitative factor allocation.The behavior object is closely related to the quantitative size.Because the concept of the object of crime embodies not only the characteristics of facts but also the characteristics of values,it is difficult to directly reflect the extent of infringement of legal interests of the act,so the concept of the object of action should be used instead of the object of crime.The object of action is the "pipeline" of connecting behavior and quantitative factors,and undertakes the "carrier" of the degree of infringement of legal interests.The object of action should include people,things and states,which have certain influence on quantitative factors.However,due to the lack of systematic provisions and narrow scope of the actors in our criminal law,the allocation of quantitative factors is unbalanced.We should stick to the allocation of quantitative factors under the interactive theory.In the crime of infringing on citizens' personal information,there are still some imbalances in the allocation of actors and quantitative factors,such as the non-equivalence of the infringement of legal interests reflected by the object on the offence,the incomplete category of actors,the imbalance of quantitative importance and so on.On the premise of constant quantitative conviction,actors and quantitative factors still exist imbalances.Quantitative factors interact in inverse proportion.Quantitative factorsshould be allocated hierarchically,systematically and equivalently according to the degree of infringement of legal interests embodied by the object of action.In quantitatively accumulating different actors,we should abide by the principle of legally prescribed punishment for a specified crime,accumulating according to the type and degree of infringement of legal interests,and accumulating only objective harm.