Theory Of Judgment On The Substance Of Crime

The fact that the act in fact is consistent with all the elements of the constitutive elements of the crime according to the criminal law means the establishment of the crime.However,this cognitive process should include interpretation,judgment and argumentation.It is the core work of criminal justice practice to judge whether a specific behavior is a crime based on the existing criminal rules.Therefore,it should become one of the goals of criminal law hermeneutics to ensure the crime judgment is correct.The theory of judgment on the substance of crime is a kind of theoretical exploration for interpretation of the criminal law hermeneutics from the perspective of crime judgment.Specifically,this paper focuses on the application mode of relevant theories of the substance of crime in the theory of crime during the juridical practice,namely,the specific functional and systematic application of the substance of crime in the crime judgment.The criminal rules on which the crime judgment is based are expressed in the text form,while the behaviors which should be judged are present in facts.So,the interpretation to criminal law becomes the presage procedure for making crime judgment.We deconstruct crime judgment into two levels: first,the ordinary logical judgment on related behaviors(facts)based on the meaning of criminal law,constituting the judgment on the necessity of formal punishment;second,the value judgment on related behaviors(facts)based on relevant theories of the substance of crime,constituting the judgment on the necessity of substantial punishment.The author considers the formal rule of law is the basis for substantial justice,and the extreme substantial interpretation theorist advocates for making crime judgment by breaking the ordinary logical form,which obviously can cause a violation of legal norms by actually making analogies for the sake of extension.The interpretation to criminal law and crime judgment should both respect the formal rule of law and pay proper attention to the substantial justice.So,the discussion on the substance of crime should be based on the interpretation to the meaning of criminal law in the link of interpretation to criminal law,while for the crime judgment,the judgment on the necessity of formal punishment should be made first,and then the judgment on the necessity of substantial punishment.This paper holds that the substance of crime is the substantial attribute corresponding to the normative form of crime,and equivalent to the necessity of substantial punishment.Two points should be noted for the understanding of the above concepts.First,the concept of crime here is still limited to the framework of criminal law hermeneutics,while the violation of criminal rules under this framework is the basic feature of crime as well as the main basis for the judgment of crime establishment,and equivalent to the necessity of formal punishment.Thus,the substance of the crime,as the reflection in legal philosophy of the concept of crime,itself can't deny the above basic features,or become the main basis for crime judgment instead of these basic features.Second,the form and the substance are a pair of mutually complementary and contradictory concepts,and we should indicate the category of the combination of the two concepts in order to designate their connotations.Obviously,the substance of crime as we mentioned is a kind of "specific reference" but not all attribute features possessed by a crime.That is,the concept of the substance of crime should be different from the substantial concepts applied by the crime judgment.But the former is covered by the latter from the perspective of extensional relation.So,it is observed that the substance of crime is a form of crime corresponding to the violation of criminal rules and the further consideration of attributes of crime contents,and takes it as one of the bases for examination of the crime judgment.As can be seen from the legal concept of crime,a crime possesses the attribute features such as punishability,criminal illegality,and social harmfulness.Based on the conclusion above,it can be seen that only social harmfulness is known as the substance of crime.The social harmfulness,legal interest infringement,norm violation,and other theories are all theories of the substance of crime.Specifically,the theory of social harmfulness believes that the substance of crime is the harmfulness of social relations protected by the criminal law;while the legal interest infringement considers that the substance of crime is the infringement of legal interests protected by the criminal law.This paper argues that the theory of social harmfulness points out that the substance of crime is related with the harmfulness of objective,historical and person-related social relations which are protected by the criminal law,but this theory lacks normalization,and has theoretical flaws featured by empty connotations.The theory of norm violation reflects the normalization of the substance of crime,but has corresponding theoretical flaws as the substance of crime no matter this theory is deemed as the characteristic of the form of crime(violation of criminal rules)to seek the endorsement of other social norms or the norm violation basis is deemed as the embodiment of "illegality" in the sense of Hegel's philosophy,namely,the crime is deemed as the violation of "legal order" representing the absolute spirit.The former shows a kind of tautology because it doesn't further discusses the meaning of the norm itself,while the latter inevitably spiritualizes and even fantasize the substance of crime.The theory of legal interest infringement points out that the substance of crime is the infringement of objective social beings protected by the criminal law,and is normative by describing the infringement in combination with relevant legal norms.Therefore,this paper holds that the theory of legal interest infringement may supersede the social harmfulness(or endow the social harmfulness with the connotation of legal interest infringement)and become the major theory of the substance of crime.Of course,in the specific application process,the concept of legal interest itself should be also filled specifically.The discussion on the purpose of criminal law and that of criminal punishment,as well as the fact and value factors(including the pursuit of justice value)existing in the criminal rules all cause the substance of crime to become an incontrovertible judgment standard.However,this never means the legal interest infringement of behaviors,etc.becomes a benchmark for crime judgment.The crime judgment should pay proper attention to both formal rule of law and substantial justice,but as a matter of fact,the pursuit of substantial justice should be based on the guarantee of formal rule of law.The real focus of dispute between the formal interpretation theory and substantial interpretation theory is whether it is allowed to extend interpretation beyond the limits of criminal law language meanings and make incrimination judgment based on this when one behavior has been judged to have the attribute of the substance of crime.In fact,this is the dispute generated by discussing the function of substance of crime in the crime judgment.Such dispute comes from different understanding of the principle of legality and that of advantages and disadvantages of formal expression functions of texts of the criminal law.Specifically,the focus of dispute of the former is how to handle the relations between the formal side and substantial side of the principle of legality.The focus of dispute of the latter is how to handle the relations between the definition and fuzziness of the meaning of criminal law.This paper argues that the following of the principle of legality doesn't mean the prohibition of the interpretation to criminal law with "interpretative statement" as the connotation,but prohibits the analogical interpretation which causes arbitrary crime and punishment.For the crime judgment,the formal side and substantial side of the principle of legality are both guiding principles.However,the formal side and substantial side of the principle of legality are two paratactic and independent self-consistency levels.The formal side of the principle of legality points out that the interpretation to criminal law should respect the meaning of texts of the criminal law,but the crime judgment based on this should also respect the formal logic.On the basis of our deconstruction of crime judgment,we can know that the crime judgment based on the meaning of criminal law as the ordinary logical judgment stays at the leading position.Thus,it can be seen that the formal side of the principle of legality stays at the leading position of relevant concepts while the thorough discussion of the substantial side on relevant problems should be based on the respect of this basis.Therefore,the substantial side of the principle of legality can't revise its formal side.But there is relativity between the definition and fuzziness of meaning of texts of the criminal law.So,the acknowledgment of the fuzziness of the meaning of criminal law doesn't mean the denying of the definition of the meaning of criminal law.In fact,the meaning of criminal law has a restrictive effect as a frame.Based on the argument above and the pursuit of substantial justice,the ideas should be established on the basis of guaranteeing the formal rule of law.We arrival at a conclusion: the judgment on the necessity of substantial punishment only has the function of verifying the conclusion of the judgment on the necessity of formal punishment.The crime judgment should draw support from the mature crime theory system,and after all,the restriction of the system of law on the applicable laws can play a role of eliminating arbitrariness.The selection of the crime theory system decides the permutation and combination of all "sub-certificates" constituting the complete crime judgment.The examination of constitutive elements of a specific crime is namely the revelation of specific "sub-certificates" of crime judgment.When the crime is treated by the theory of constitutive elements,the establishment of crime is indispensable for the elements of each constitutive element.In a similar way,when the crime is treated from the perspective of crime judgment,the judgment of a behavior as a crime means that the behavior passes all "sub-certificates" which shall be proved.Certainly,indispensability doesn't mean there is no differentiation between primary and secondary,and differentiation in precedence relations.It is finally confirmed that the theory system of judgment on the substance of crime will be based on the classical "three-class" crime theory system by criticizing the substantial two-class crime theory system,and objectively evaluating the crime constitution-four-element system.The primary cause is that it contains the narrowly-sensed constitutive elements.The concept of constitutive elements is different from the concept of deservedness of constitutive elements,and this paper thinks that the former is the guidance image,while the latter is the crime type.Therefore,the narrowly-sensed constitutive elements can carry on the pure crime judgment based on the meaning of criminal law and the ordinary logic.For example,the examination of the judgment on actor elements is the judgment on narrow-sensed constitutive elements.This paper argues that the class of deservedness of constitutive elements is constituted respectively by objective constitutive elements and subjective constitutive elements.But the examination thinking of "subjective constitutive elements after objective constitutive elements" requires us to first examine the objective constitutive elements with behavioral elements as the core.While the examination of deservedness of relevant elements should also follows the examination order of "necessity of substantial punishment after necessity of formal punishment".For example,when judging whether one specific behavior conforms to the intentional action crime,firstly,we should examine the necessity of formal punishment,and then that of substantial punishment for the behavior element.Secondly,we should examine the intentional elements in the sequence above.Specifically,we should first examine the necessity of formal punishment and then that of substantial punishment in the cognition level of intentional elements;after the examination in the intentional cognition level,we should first examine the necessity of formal punishment and then that of substantial punishment in the will level of intentional elements.The author believes that the substance of crime,as relevant independent judgment,plays a function of lighter sentence by verifying the conclusion of judgment on the necessity of formal punishment.The function of the substance of crime in the illegality class is mainly for the quantitative judgment of "extent of self-defense" of the illegality elimination matter.Take justifiable defense as an example,the examination of following of "justifiable defense against unjustifiable defense",and the actual "emergency" is under the jurisdiction of the judgment on the necessity of formal punishment,while the examination for maintaining the "extent of self-defense" is under the jurisdiction of the judgment on the necessity of substantial punishment.The responsibility for a crime is an evaluation criterion for the actor himself/herself,while the substance of crime is that for the behavior itself.This decides that the function of the substance of crime in responsibility class can be only played indirectly.The function of the substance of crime in the responsibility class should be played in combination with the substantial examination of subjective constitutive elements.For example,whether the intentional subjective constitutive elements have the necessity of substantial punishment can serve as an important basis for illegality cognition elements for responsibility elements.