On The "Serious Circumstances" For The Establishment Of A Crime

The legislation of "serious circumstances" occupies a considerable proportion in the criminal law,reflecting the open attitude of criminal legislation and the trend of criminal legislation in the future.Its existence is to inform the judicial referees that they can not understand and apply dogma mechanically and rigidly,but should follow the consultation and integration between facts and norms brought by the differences of crime phenomena.This is in line with the theory of open constitutive elements,which recognizes the closed elements,and there should be elements that need the judges to actively supplement the judgment.The study of the crime of circumstances from the perspective of annotated criminal law can not only fill in and amend the shortcomings of traditional criminal law theory for the study of plot crimes,but also effectively examine the rationality,continuity and applicability of criminal law theory,and provide corresponding guidance for judicial organs to judge crimes and non crimes.Chapter 1:An overview of the "serious circumstances" of the conditions for the establishment of a crime.Judicial interpretation is based on the consideration of clarifying the content of the constituent elements and regulating the discretionary power,and usually converts "serious circumstances" into other types of crimes.Regarding the situation in which multiple elements play a role in influencing the "serious circumstances",the judicial interpretation does not involve it.It is usually summarized as "other serious circumstances".This is a manifestation of the powerlessness of the legislative and judicial interpretations: on the one hand,the legislator It is almost impossible to foresee all the plot elements;on the other hand,even if foreseeing,it is impossible to enumerate such complicated combinations one by one.The "serious circumstances" legislative design is the result of the legislators weighing in between the protection of human rights and the maintenance of order,the clarity of the law,the prevention of loopholes in punishment,and the short value of legislative language."Serious circumstances" have the characteristics of legality,high generalization,unity of subjective and objective,wide range of existence,and deliberate response to crime.Its normative value is mainly embodied in: compatibility with the dual cross legislative sanctions system,compliance with the requirements of the criminal constitution system,compliance with the background of the times and criminal policy trends,and conducive to the exercise of judicial discretion.The circumstances of conviction and the circumstances of sentencing are relative,and there is no absolute boundary between the two,and the specific circumstances should be analyzed in detail.The “serious circumstances” refers to the circumstances stipulated or recognized by criminal laws and criminal policies,which exist outside the common elements(elements)constituting the crime,reflect the social harm of the behavior and the personal danger and degree of the perpetrator,and can affect Various subjective and objective facts of the conviction.The plot of "serious circumstances" is different from the plot in the book.The latter does not contain the element of result,nor does it involve some plots that promote or degrade the statutory sentence and(some)guilty plots.The two are a kind of Belonging to.The criminal object is a certain social relationship that is infringed or threatened by a criminal act.It has only the meaning of ontology,and has no function of self-evidence.Not only is there no space for the conviction plot in the criminal object,but it is not the conviction plot itself.Chapter 2:The Positioning of the Crime Constitution System of the Circumstances in "Serious Circumstances".The role positioning of "serious circumstances" is reflected in the status and role of "serious circumstances" in the composition of the crime,specifically expressed in the relationship between the circumstances and the elements of the crime,and whether the circumstances of "serious circumstances" require the perpetrator's subjective sin Hanshe.On the one hand,the non-constitutive element theory recognizes the standard status of the four elements for establishing a crime,and on the other hand denies that the four elements are compatible with the "serious circumstances" of the establishment of a crime,thinking that it can only be used as a reminder of the constitution of a crime,or is beyond the four elements Crimes other than those that constitute a "quantity" requirement,or objective punishment conditions that fall outside the scope of the crime,have fatal flaws in logic.The "negative element theory",the "quality and quantity element theory",and the "holistic evaluation element theory" in the theory of constitutive elements(element)do not fully and reasonably explain the status and function of the plot.The conviction circumstance is neither a basic element for the establishment of a crime nor a common element,but a specific element that reflects the personality of the offender in the circumstance.It is a synthesis of the remaining criminal facts(elements)after sufficient other elements.The constitutive elements say that by extending the connotation of “knowingly”,the crime covers the entire criminal process of “behavior + result”,but it has not noticed that some circumstances similar to objective punishment conditions cannot be contaminated by the crime,and there are insurmountable defects.The differentiated treatment theory adheres to the view of "mixed offenses",although it is conducive to distinguishing the elements of a crime from the objective punishment conditions,but it will cause difficulties and confusion in the judgment of guilt.In view of this,the traditional crime theory and the differential treatment theory should be amended,that is,based on the "result standard theory",and at the same time distinguish between the knowledge of the facts of the constitution of the crime and the evaluation of the facts of the constitution of the crime,as well as the division of the true constitutive elements of the crime(Elements)and objective punishment conditions.Chapter 3:Exploring the Plot from the Perspective of the Controversy over the Basic Standpoint of Criminal Law.The dispute over the basic position of criminal law has not only been launched in Chinese criminal law theory,but also touched on many aspects of criminal law legislation and justice.Exploring the issue of conviction in this field cannot avoid the cognitive differences brought about by the choice of basic positions.The theoretical foundation problems reflected in the plot can almost restore the entire content of the debate between the classical school and the modern school.Personal danger in the sense of conviction,as a limited academic interpretation standard,is appropriate to explain the nature of certain statutory convictions such as having received administrative punishments and multiple times,that is,compared with the objective legal basis for normal crime types.These regulations reflect the legislator's concern for dangerous personalities.Personal danger in the sense of guilty is not a necessary element for the establishment of all crimes,but a selective element for the formation of a crime.Although both personal dangers are used in the field of crime theory,their connotations are different.The former is a concept of subjectivism and personality criminal law,and the latter is mainly the content of behavioral criminal law,dualism of the essence of crime,and punishment.The norm violation theory is easier to explain the content of the constituent elements in the criminal law of our country than the legal interest infringement theory.The two theories have similarities and differences in explaining the degree of violation and the elements of openness.As a result,non-value theory and behavioral non-value theory have different explanations of illegal materials and punished basis for "serious circumstances",but the difference in position did not cause the emergence of two opposite conclusions,namely illegal and legal,on a large scale.There will be two different conclusions of crime and non-crime in the determination of these statutory crimes.In the theoretical research of Chinese criminal law,the occasions that truly embody the advantage of behavioral valuelessness(restricting the circle of crime): one is the criminalized interpretation of socially equivalent behavior;the other is to exclude judicial interpretations that are not related to social ethics and morality.Conflicting breakthrough crimes constitute the conviction function of certain "criminal policy scenarios" in the evaluation scope;the third is to promote the close connection between the future criminal law establishment,reform,and abolition with the core socialist values,and enhance the moral foundation of legislation and the perceivability of the public.Socially equivalent behaviors and behaviors that deviate slightly from socially equivalent behaviors are either legal or general violations(administrative violations).Only behaviors that deviate significantly from the society are behaviors that should be punished.In the theory of psychological responsibility,purpose and motive become the content of the plot,which mainly strengthens the incriminating function of "guilt is punishable",and its deficiency plays a role in constricting the crime circle(resisting responsibility);understanding of illegality(Possibility)is an element of responsibility independent of intention and negligence.In the theory of normative responsibility,the expected possibility is also the element of responsibility(the content of the plot),which appropriately explains the “refusal to explain,refuse to cooperate” and “use the illegal proceeds in illegal activities” as the content of the plot as stipulated in the judicial interpretation.The irrationality.my country's criminal legislation and criminal law theory basically adhere to the standpoint of the theory of behavior responsibility,and exclude the vast majority of unpunishable acts after the fact and the circumstances that affect personal danger from the composition of crimes.Chapter 4: The rules of the determination of "serious circumstances".In the theory of psychological responsibility,purpose and motive become the content of the plot,which mainly strengthens the incriminating function of "guilt is punishable",and its deficiency plays a role in constricting the crime circle(resisting responsibility);understanding of illegality(Possibility)is an element of responsibility independent of intention and negligence.In the theory of normative responsibility,the expected possibility is also the element of responsibility(the content of the plot),which appropriately explains the “refusal to explain,refuse to cooperate” and “use the illegal proceeds in illegal activities” as the content of the plot as stipulated in the judicial interpretation.The irrationality.my country's criminal legislation and criminal law theory basically adhere to the standpoint of the theory of behavior responsibility,and exclude the vast majority of unpunishable acts after the fact and the circumstances that affect personal danger from the composition of crimes.If the subject of criminal law obtains truthful knowledge,it cannot be limited to theoretical argumentation and ideological experience,but must follow certain strict guidelines and methods.Otherwise,it will inevitably repeat the same mistakes and hardly make substantial progress.Emphasizing the basic status of subjective elements can easily lead to the ambiguity of the legal and moral boundaries,the difficulty of criminal identification and the wanton judicial discretion.Based on the facts of objective constituent elements,it not only conforms to the law of criminal identification,but also can protect the perpetrator from being punished for purely subjective malignant and inner intentions.It is also a kind of relief and remedy for the powerful conviction function of the concept of substantive crime.Correction.The first objective and then subjective judgment method is: first,select the objective constituent elements that affect the degree of illegality.If these circumstantial elements cannot meet the requirements of the illegal and punishable,then there is no need to judge the subjective elements at all;secondly,according to the description of the crime Determine the subjective constituent elements to be investigated,that is,whether there is purpose or motivation other than intention;thirdly,according to the correspondence between the objective elements and the subjective elements,the conformity of the subjective elements is deduced.The method of formal judgment prior to substantive judgment is to determine the circumstance elements that affect the violation and liability according to the basic position of the criminal law,combined with the specific circumstances clearly listed in the judicial interpretation,and determine the circumstance elements that affect the violation and liability,and then the substantive judgment of the penalties for violations And guilt is punishable.