Criminal Illegality Logically And Historically

Criminal illegality and social harmfulness are two concepts that complement each other.Since the introduction of the two concepts into China by the Soviet union's criminal law,they have been given positive evaluation significance.Both of them have made their own contributions to the establishment of crime.Criminal illegality and the so-called positive statutory principle of crime and punishment are the same,both emphasize that the conviction and sentencing must be clearly stipulated by law,but this is obviously self-evident.Social harmfulness is regarded as a "bad child" in the development process of China's criminal law theory,and celebrities in the academic circle try to replace it with the concept of legal interest,but the embarrassment of the concept of legal interest lies in the fact that it is located outside the theory of crime constitution but has become an element excluding the criminal system.The theory of criminal law is restricted by the criminal code,which is also the superficial meaning of the principle of legality of crime and punishment.According to the proviso of article 13 of the criminal law of China,social harmfulness is regarded as a factor to be considered for excluding crimes,which is a fact that cannot be ignored and avoided.Principle of a legally prescribed punishment for a conviction,is the basic spirit of punishment,the criminal illegality in this respect the principle of a legally prescribed punishment for a summit,at the same time to the secondary sexual illegality notion,criminal illegality also have negative evaluation significance,namely conviction,the meaning of punishment,criminal illegality is just within the law ruledout for the social harmfulness is ruled out reason method outside,with explanation of criminal law and criminal illegality solidarity,to carry out the overall framework and structure of the criminal law theory.Modern criminal law theory inherited and developed the modern criminal law theory of idea,system and technology of Liszt to form the division of the illegal and essence also laid a solid foundation for the modern criminal law to some extent,Russia inherited form of illegal criminal law idea,but not take into account the tension between criminal illegality and harmful to the society.In recent years,the theory of German and Japanese criminal law has taken root in the criminal law circle of our country and grown up vigorously,showing a flourishing trend.It is an extreme attitude to study without considering the far-fetched results of foreign theories or to swallow a date without worrying about the three seven two one.There is "very in the four books and the doctrine of the mean",is "how" and "knock at both ends,these seemingly traditional and conservative way of doing scholarly research attitude,can yet be regarded as the breakthrough of contemporary criminal law,this article in adhering to the criminal illegality as the criterion on the basis of the criterions for the conviction of criminal code,and further puts forward through the explanation of criminal law in criminal illegality subsidies to rule out the function of the crime,and it must have its to have,inheriting the fundamental spirit of the principle of a legally prescribed punishment is not convicted,not punishment,seemingly contradictory two functions actually highlights the negative potential of criminal illegality,in other words,this is a dynamic and developing concept.True,the reference to the concept of civil law essence illegality,but criminal illegality differs from that of continental legal system to form after the essence of human fantasy,but intertwined into sin and the sin,and the judiciary must rely on professional judgment and come to the conclusion that criminal illegality as its professional judgment provides a path and method.The first chapter expounds the history of criminal illegality,this concept comes from the concept of the penal code of Soviet Russia "on crime,crime criminal illegality is easy to understand is that the criterion,but so are easily confused with crime constitution theory,concept and actually crime constitution theory from the perspective of different crime,to build thefoundation of the theory of criminal jurisprudence.Mainland legal system country three class system,in a sense is synonymous with crime concept,this is a process of that crime,and inherited from the Soviet period in our country for the definition of the concept of crime,in terms of code is the Angle of the legislators,in terms of law attribute is the ruling class to understanding,crime constitution is the judicial way of thinking,how to apply code and crime constitution is a theory of product.The theory of criminal illegality is connected with the legal principle of crime and punishment and the system of crime.Although there is a tradition of ruling crimes according to law in ancient China,the supreme ruler can extend mercy or impose punishment out of law,which is a great destruction and subversion of the rule of law.Sentences is the main melody of Chinese ancient punishment,punishment is various,the number of not only means of punishment is cruel,and the Han Dynasty rulers also aware of the seriousness of this problem,but at the same time as the Chinese emperor abolished corporal punishment will undoubtedly increased physical punishment punishment,leading to "outside light punishment,the name of the real killer",the"spring and autumn trial" is to reduce the penalty for statutes explained.But always say "the spring and autumn period and the trial" confusion of the distinction between morality and law,but not enough to do the concept is deeply rooted in the hearts of the people,and so the ancient society"the ritual" to some extent is equivalent to the "law" of modern society,is "law" is the premise of equality,and "the ritual" is publicly advocates,the inequality between the level of patriarchal kinship.Therefore,Chinese ancient society there is no principle of a legally prescribed punishment for a breeding ground for soil and punished in accordance with the law is only the surface meaning of principle of a legally prescribed punishment,its basic spirit is not convicted,not punishment,analogy principle only eased to some extent there is no legal basis to the application of law ruling special circumstances of the case,analogy principle for buried a bad analogy to explain,namely law has no clear stipulation is not necessarily is not a crime.The criminal illegality of the Soviet union obviously stops at its superficial meaning,and cannot compete with the social harmfulness in legal status.The latter is the essential feature of crime,but the exploration of the concept of illegality in the continental law system broadens its extension,and in judicature,it also abides by the criminal law as the last line of defense for social ills.Hegel in the book "law philosophy principle",put forward the concept of "illegal",and that only the real crime is "illegal",since then the mainland legal system countries always obsessedwith "illegal" and "illegal" with the illustration of the works,but the effect is not very desirable,"illegal" today is the subordinate concept of "illegal" and widespread of academic recognition,in addition to this is not strictly distinguish the difference in content.Hegel's concept of lawlessness does not focus on the identification of criminal ACTS in the philosophical level,but further explains the rationality of applying penalties to criminals.Kant,Hegel and all claims on penalty retribution theory,only Kant,Hegel in the amount of karma is proposed on the basis of the concept of equivalent retribution,and apply to criminal punishment is respect for their free will,because the offender in the crime already know once acted as disclosures will be judged by the law and sanctions,and has the free will of the offender has accepted in the future may face punishment.Under the influence of Hegel's philosophy of law,Lister,a master of modern criminal jurisprudence,established the concepts of formal illegality and substantial illegality in criminal law,but they are complementary to each other rather than the connection between the first phenomenon and the essence.After that,Jescheck inherited and developed Lister's understanding of illegality,but pointed out that illegality was a concept that could not be proved,because its intention was to exclude the compliance of constitutive elements.Only by means of specific obstacles of illegality family could it fully demonstrate the role of illegality in preventing crime.Contemporary criminal jurist Roxin not only created the objective imputation system,which is likely to replace the three classes,but also further refined the attribute of accountability,which integrates the criminal policy into the crime theory,thus forming a huge theoretical edifices.The most difficult part for us to understand when we study the theory of crime in the continental law system is the content of illegality,which is a strange concept for the existing theory of crime constitution in our country.Criminal illegality is a product of the Soviet Russian criminal law,and illegality is the concept of the civil law countries,few scholars have discussed the relationship and difference between the two,both in their language system to form a set of independent system,appeared to rule out,but it happened that the history of both the Soviet Russian criminal law tradition in China,and study the advanced countries under the rule of law of ambition,it will become a circle is not the past candy and had to face the theoretical problems.The concept of "legal interest",which was originally a foreign noun to replace the object of crime,has now become one of the nature of illegality.In contrast,the concept of "norm" is of priority to maintain order.At the same time,many competing concepts,such as behavior without value and resultwithout value,subjectivism and objectivism,have been born.As the concept of illegality continues to be accepted and developed in China,the above concepts and theories are becoming mature in the criminal law circle in China.But on the whole,China's criminal law on the criminal illegality concept itself is lack of deep understanding and play,its concept of continental legal system also ill-informed and biased,not overwhelm east or west wind,is the latter,to replace the former view is to understand these two concepts,to explore the path,as to the relative merits of also is restricted by the existing penal code in our country.The second chapter starts from the definition of the concept of crime in article 13 of the criminal law of China and summarizes the three characteristics of crime,that is,social harmfulness,criminal illegality and punitiveness.Traditional textbooks hold that social harmfulness is the essential feature of the concept of crime,and criminal illegality is the legal feature of crime.Then there is a view that we should adopt a dichotomy to the concept of crime,that is,the legislation emphasizes social harmfulness,and the judicial praise of criminal illegality,so that should be subject to punitive punishment is still a dispensable concept.Little did they know that the key difference between criminal law and other laws lies in the fact that the penalty should be punitive,because the penalty is triggered by the crime,and it is also the means and method of punishing the crime.There is a dynamic balance in the application of criminal law.Strictly dividing legislation and judicature is helpful to understand the form of criminal law,but it is also a sign of preconception.Criminal illegality is harmful to the society and should be punished punitive bridge,in terms of the crime should be criminal illegality as the judgment standard,accurately apply the law,repeated proof of criminal behavior and the degree of match between the component elements of crimes,even if meet the requirements of composition of crime and criminal law article 13 "but" care,might as well not be punished as a crime with smaller if harmful to the society and further investigate whether there is a fairly even harmful to the society that punishment is necessary,so will also include the "criminal law" article 37,which embodies the spirit of careful punishment of the modern rule of law.Therefore,it is necessary to clarify the connections and differences between these three concepts,change the originalprejudice against the crime of random access to persons with social harmlessness,and rediscover or awaken the value of punitive punishment due to punishment.Otherwise,administrative punishment and punishment have a lot of overlap,and there is no "qualitative" difference between the two.In addition,there are many connections between the illegality of criminal law and the constitutive elements of various crimes.The civil law system in this respect has no lack of new creation and new theoretical contributions.Legal language does have its particularity,that is,the so-called French legal language,but these languages are still part of the daily language in the final analysis,and the law cannot be separated from the concept to form a system.Therefore,it is urgent to define the relevant concept of criminal law and its scope of application.The constitution of crime in our country and the constitution of civil law system are not exactly the same from the connotation to the extension,so it is necessary to redefine the scope of their application and the meaning and effect to be expressed.In general,the concept of crime constitution is the general characteristic of the criminal law,it is not break up of the specific charges,but in general people how to recognize and understand the ways and methods of crime,the constitutive requirements is a concept,unique to the specific provisions of criminal law must be combined with front attributive before the constitutive requirements,the components of a crime or not is to understand and apply,slightly difference between each component elements of a crime,and even the doctrinal adds hidden elements,but the deletion or omission of some content or spirit in order to implement the austerity of criminal law legislation on sex,strictly control the scope of the criminal law,avoid hurting the innocent.Criminal illegality is the forerunner of constitutive elements.Therefore,instead of building an unimpeachable system of crime theory,it is advisable to make an in-depth study of the attributes and functions of constitutive elements.In the concept of clear criminal illegality is the only criterion for judging criminal crimes,social harm should not override the criminal illegality and expand the application of criminal law,in order to maintain social order.Punitive is true of the criminal law should be punished base color,only punishment has deprived,restrict the personal freedom ofothers,and even deprivation of life under certain condition,the severity of the it is embodied in the punishment of human freedom and life,and the two are the basis and premise of the person's behavior should fully understand the only by the connotation of punitive penalty,the criminal law is the last line of defense of social governance advocates the spirit of criminal law should be tolerant,such as not only become a mere formality,become a cries out the name of justice and secretly still believe we use heavy safer,the inertia of thinking.Because positivism has shown that the legal effect of "killing people to establish power" and "severely punishing officials" is limited,but it unintentionally spreads the ideology of power politics and starts the trend of thought of legal nihilism.In practice,adhere to the theory of crime constitution is constructed,the different judicial authorities determine the starting point of the same crime slightly different,but there is supposed to take into account factors such as criminal policy,eliminate crime reason,attaches great importance to the criminal illegality is within the law of the sin mechanism and social harmfulness peculiar method out mechanism,at the same time must uphold the theory of criminal law is restricted by the penal code,the judicial is unfavorable to the terms of the other countries set up random evaluation occurred within the territory of crime in our country,and if the conclusion of judicial obviously violates the common sense of the vast majority of people,judicial professionals also thinks the provisions in the loss of justice,This phenomenon is enough to attract the attention of the legislature to start the procedure of amending the law.In addition,the direct basis of any criminal act should be the express provision of the criminal code of China,which is also the positive side of criminal illegality to restrict or avoid extrajudicial punishment.However,the study of illegality in the continental law system is of great reference significance to the development of the theory of criminal illegality in China,that is,to constantly explore the possibility of committing a crime of substantial illegality.Criminal illegality and the possibility of crime within the law,which is in line with the fundamental spirit of the principle of legality.In other words,criminal illegality also has a negative side.In this aspect,the theory of civil law system's illegality is more refined and deeper than the singlefunction of China's criminal illegality.The third chapter road map,unravel mysteries "illegal","" against the...The two have the same meaning in some aspects.The implicit meaning of "illegal" is that there are legal cases or other exceptional cases,"in violation of...The purpose of"stipulation" is to reveal the precondition of the violation,which also reflects the second illegality of the criminal law.In other words,criminal illegality has the characteristics of hysteresis.The word "illegal" is also divided into objective and subjective.The emphasis of objective illegal behaviors is still on the understanding and application of the constitutive elements,while the subjective illegal psychology relies on the objective behaviors to make speculations.Therefore,as long as the actor makes clear the legitimacy of his behaviors,the illegal attributes of his behaviors will be offset naturally.The real world is not black and white,there are often so-called gray areas in life.A loophole in the law or a vacuum does not cover this kind of behavior of the track but turn a blind eye to make law enforcers,sometimes have to existing law to make the corresponding evaluation,but can't don't have to punish and expand the scope of the criminal law,and optional explanation of criminal law,which is the word"illegal" potential implications."Contrary to..."Intended to prompt previous legal norm of criminal law,but as a result of penal code too general expression of the judicial personnel cannot know clearly the specific previous rules,but neglected in reality to previous regulation which does not exclude the viewer in the criminal law for choice,had limited effect of legislative language cannot operate in practice and execution,which further led to many of the ideas in theory of criminal law and not expect help to practice.From the criminal law is concerned,any crime is a legal,but natural crime and statutory crime classification has been deeply rooted in the hearts of the people,nature made focus on the ethical and moral aspects of the crime,legal is also called administrative commit,this kind of crime to fully implement the secondary sexual violations of the criminal law theory,the existence and relative administrative illegal or criminal law violations.However,Garofalo emphasized that the altruistic emotion of natural crimes was classified from the perspective of the necessity of punishmentand biological research.He was the epitome of the positivist criminology.Lombroso was excessively focused on the physiological characteristics of criminals,and Philly attached great importance to the subtle influence of social environment on criminals.Garofalo synthesized the previous empirical conclusions supplemented by the crime is a violation of human feelings rather than the destruction of rights,so against non-natural crime can only be closed.Nature can only be made with the natural made relatively,and administration to make effective German scholars on "administrative criminal law" the concept of development,the rise of commodity economy and led to the "economic" made in the study of contemporary punishment law heat,refinement of social classification is bound to lead to criminal law epitaxial growing which was born in the field of new crime type,artificial intelligence crime or so at the moment.There are also subjective and objective points for the reference object of illegal elements,and the subjective illegal elements derive from the purpose offense,the tendency offense and the performance offense.According to the research results of Japanese scholars,the objective crime can be divided into the severance of the outcome crime and the shortening of the second act crime.However,in any case,it is necessary to investigate the subjective purpose of the actor to differentiate and analyze the behavior mode of this kind of crime.At the same time,some purposes are also the transition point between this sin and that sin.Illegal elements lies in a lack of these factors do not constitute a crime,therefore,must face up to these limitations in the judicial established criminal elements,not because these factors are difficult to be effectively prove proof standard and the artificially decreased or truncated the constitutive requirements,it is not difficult to find illegal elements is not fixed static conditions,but its dynamic development is not to explain the cause of the criminal law,criminal law should be based on a strict interpretation of the rules was recorded in penal code of France.As to tend to be made and performance make reality is no longer necessary to distinguish,tend to make is mainly refers to obscene class crime,specifically related to the witnesses to testify crimes,and study the two mysterious and obscure concept,rather than directly into study under the specific charges,afterall,these two types of crime,there is no necessary of macro study,and the classification and extraterritorial criminal code charges set,blindly copying foreign research results only to bother even end its penal code and far-fetched,the essences of the world through the eyes of its ultimate is a problem in China.Objective illegal elements is a practical problem which is widely scattered in the criminal code but not paid enough attention to in theory.These elements not only directly affect the establishment of a crime,but also indirectly affect the degree of sentencing.Professor Chen Xingliang early proposed crime quantity factors,mainly is refers to the amount and circumstances,namely,these two elements should be regarded as become the indispensable condition for the crime,but foreign legislative qualitative,judicial quantitative arguments to cause the attention of domestic scholars highly,think in the legislation of crime quantity elements is necessary,moreover think but only to expel these conditions and the rule of law in developed countries will scale.Sin is judicial reality problem that not allow to ignore,quantity of crime and punishment and administrative penalty between the magnitude of the game,different legislative models lead to different understanding of crime quantity factors,foreign legislative cases of misdemeanor to some extent are replaced by the administrative punishment in our country,the public security management punishment law of number representation of crime and criminal law,and the effect of both the most essential difference is that punishment is different,the resulting the different social evaluation and legal consequences.Past research has focused on the plot and the amount of the specific problem and ignore these two elements affect a special status crime,if the illegality as the breakthrough point,it is not difficult to find that the volume of sin did not meet the act should not be same as the crime,or not applicable to this severe penalty clause,which to a certain extent,restrict the tension of the criminal law,and to reduce the penalty amount.Chapter iv of the civil law the relevant theories of the concept of illegality for one by one,the good and discard the dregs,existing criminal theory system in our country there is no objective illegality breeding soil,security is not part of the penalty system in our country,the characteristics of subjective illegality emphasizes behavioris attached to people's subjectivity,the behavior is a product of the main body,there is no behavior out of the body,space,but the main body of legal concepts should be refers to the specific,honest people,but because our country admits that the main body of unit crime attributes and the main body to some extent,the abstract meaning.Form and the essence of which is the specific interpretation of unlawful sexual function,the construction is of great significance to our country criminal illegality theory,form and substance of different positioning respectively constructed the criminal illegality in idea,system and technology,on the concept of the law shall prevail,criterions for the conviction,on the contrary,the law has not had.In terms of system,there is the exclusion of criminal causes within the law,and justifiable defense and emergency avoidance are the most typical.Technically,there are subjective and objective illegal elements,which are considered as the conditions for the establishment of a crime from the perspective of constitutive elements.However,from the perspective of criminal illegality,no crime can be constituted without these elements.Secondary sexual illegality theory also embodies the criminal illegality grip expansion applicable criminal law judicial environment in theory,these theories are reveals the negative performance of the criminal law itself and negative effect,how to matching with previous legal norm of the criminal law in the judicial apply into practice is one of the future direction of criminal justice.The civil law theory of crime system and the biggest differences is that illegality in crime constitution theory in our country,and this difference reflected the knowledge of illegality,the country's criminal illegality implied the apply to the positive role of criminal law,and the civil law of illegality is demonstrated the negative ability of the criminal law,this is also our country criminal illegality didn't contain the content and the extension of concept.But the theory of the civil law illegality is contradictory,because it depends on the content of the illegal deterrent for and puts one and the theory of crime,and the exclusion of criminal proceedings in China outside of crime constitution theory in the structure,the one outside was out of the mainland legal system in the class of the theory of logic,status,and many other advantages.The illegality theory in countries of continental law system is tantamountto a synonym for preventing the illegal causes.Obviously,the constitutive requirements of preventing the illegal causes in different countries are similar,but the punishment results are quite different.However,the theories of other countries benefit from the special provisions of other countries' criminal codes,while China's criminal codes have no relevant legal basis.In addition,different litigation modes in different countries further deepen the estrangement of illegality theory to some extent.The obstruction of illegal causes is a set of independent system design,which must be proved in litigation,and make clear who can prove it,to what extent,and what legal consequences cannot be proved.The fifth chapter is about the practice of the theory of criminal illegality.Firstly,it confirms that the positive function of this theory is to establish the criterion and standard of conviction and sentencing.Secondly,it reaffirms that this theory is consistent with the principle of legality of crime and punishment,and fully explains that non-conviction and non-punishment are the fundamental spirit of the principle of legality of crime and punishment.It is emphasized again that neither the proviso nor the exemption from criminal punishment have criminal illegality.Finally summed up as the freedom of the penalty is the fundamental embodiment of the penalty.Punishment based on directly on the criminal illegality judgment,there is inner transformation between negative and positive,from the negative crime to the negation of negation and affirmation on the establishment of the crime through the practice of the theory of criminal illegality,it compared to the continental law system from affirmation to negation and affirmation of the way is more profound significance.,in other words,from negation to affirmation truly embodies the essential spirit of principle of a legally prescribed punishment,and sure to have since,also with lawsuit out after all reasonable doubt and meet the requirements of various crimes constitute proof standard is tied,this theory is not only the architecture of the criminal law itself,and even one instance of the gap between criminal law and criminal procedure law.Reexamine the meaning of proviso in the theory and practice of criminal law in China,and make it clear that proviso is also a kind of unique cause of crime.It has both internal basis and external factors,which also highlights theappropriateness space between the clarity and flexibility of criminal law.To sum up,have the function of the two sides,but no more than certain effect,it continues the principle of a legally prescribed punishment for a fundamental spirit up and down to open is the essential feature of crime should be punished punitive,to distinguish it from the administrative punishment,rather than just superficial ideological both exist the difference between "quality" is an awkward where "quality".The content of the theory of criminal illegality mainly includes the cause of the crime in law,the subjective and objective elements of the crime and the "illegality" and "violation of..." Crimes,its extension is match the previous regulations of the criminal law,and on the application direction for criminal lawsuit activity,therefore accurate recognition of criminal illegality theory value and the significance of this article,the concept of the criminal illegality due to the characteristics of the dynamic development,only by reference to the principle of a legally prescribed punishment expression,specifically refers to the lack of criminal behavior of illegal elements should not be as criminal processing,and can't rule out the behavior of illegal elements will be subject to all the constitutive requirements of sin,and a strict interpretation elements constitutive requirements.