Identification Of The Culpability Form From The Perspective Of Element Analysis

The theory of culpability is an old traditional topic and a new eternal proposition.With people's full and deep understanding of crime,the more prominent and important the position of crime theory in the criminal law system is.As a necessary condition for conviction and sentencing,the form of guilt has experienced a historical evolution from obscurity to clarity,from blindness to consciousness,from concrete to abstract,from sentencing to conviction.Up to now,no scholars deny the influence of the form of guilt on the quantity.Therefore,the theory of culpability in our country is deeply influenced by the theory of guilt in the former Soviet Union.The criminal law has made detailed provisions on the content of the form of crime in legislation.Article 14 and Article 15 of the criminal code respectively stipulate two basic forms and contents of criminal intent and criminal negligence,but the difference is that there is no further distinction between the two basic forms.Based on the theory of foreign criminal law,the traditional theory of fault also makes a more detailed division of "two types and four kinds" according to the current legislative provisions,that is,criminal intent can be further divided into direct intent and indirect intent,while criminal negligence includes overconfidence and negligence.Some scholars call China's traditional theory of guilt "whole crime analysis method".The whole crime analysis method emphasizes the integrity of the object of crime,the singleness of the form of crime and the opposition between different crimes.According to the traditional theory of culpability,the object of culpability is the whole of objective elements with harmful results as the core.In intentional crime,the form of culpability of all objective elements is single intention,and intentional crime does not include negligence,and intentional crime is not allowed in negligent crime.These uncertain factors constantly impact the hierarchy and order pursued by codification,and also urge us to constantly reflect on the relationship between guilt and objective elements.In the era of statutory crime,the rigidity and mechanization of the whole crime analysis method are more and more prominent.There are some theoretical defects in the whole crime analysis method,such as the emotional will factor is difficult to define and the role of the behavior factor and other objective factors is overhead,which will further lead to some practical problems,such as the unclear form of fault in the basic crime,the non-unique conclusion of the result aggravated crime,the vague positioning of the crime plot,and the conflict between the theory of fault and the theory of error.Although Chinese scholars try to amend the traditional theory of guilt,it is basically carried out under the basic logic of the whole crime analysis.This kind of theoretical analysis method,which requires only one sin for all the objective elements,has been severely challenged both in theory and in judicial practice.The method of element analysis is proposed by the “MPC” of the United States.The method of element analysis is put forward on the basis of rethinking the whole crime analysis method of the United States and the theory of guilt in common law.American criminal law scholars regard the provisions of element analysis in the “MPC”as the most important provisions in the criminal code.It is the most representative system in the modern American crime system,and also the most important and lasting contribution made by the drafters of the code.According to the analysis mode of elements,the objective elements can be divided into three categories,namely,behavior elements,result elements and accompanying plot elements.The objective elements here do not include the facts of jurisdiction,jurisdiction,limitation of time and so on.The elements of crime and responsibility are divided into four levels,namely,deliberate,knowingly,reckless and negligent.The model of element analysis establishes the relationship between the elements of crime and objective elements,which mainly includes: each objective component has corresponding elements of accountability,and there is no crime without accountability elements for each objective component element of a specific crime,except for the strict liability crime regulated by law,The legal accountability element is applicable to all the objective elements.If the law provides a kind of element of responsibility without distinction to many objective elements,the judge should apply the elements of the responsibility in the law to each objective element.It is possible to apply the method of element analysis in China.With the advent of modern risk society,the application of criminal law has changed from self-restraint and self-restriction to active expansion.Criminal law as a tool to regulate risk,in order to reduce the risk of insecurity or fear.In essence,risk criminal law is a kind of preventive criminal law.The trend of prevention of criminal law poses a great threat to the traditional liberalism and formal rule of law.Security issues constitute the connection point between the theory of risk society and the criminal law system,which makes the elimination of danger or prevention the primary purpose of criminal law.Criminal legislation is endowed with a strong color of functionalism,and criminal law needs to complete the transition from tool to purpose.In other words,the crime prevention function of strengthening risk control is placed in a more core position compared with the punishment proper function of retribution.There are a lot of abstract dangerous crime and behavior crime in our criminal legislation.The number of statutory crimes shows a blowout state,and a "statutory crime era" has come.At this time,the behavior elements gradually become the core of the imputation activities,and the result elements as the basis of punishment will fade away.The method of element analysis emphasizes that the object of crime is the specific objective component element,and the relationship between intention and negligence is not the opposite relationship but the hierarchical relationship.The method of element analysis not only follows the principle of legality and responsibility,but also adapts to the coming of the era of legal offence.Therefore,the method of element analysis has a certain reference significance for solving the difficult problems in our country's crime analysis.This paper holds that the element analysis takes a different logical approach to the analysis of subjective guilt from the theory of guilt between the two.The research thought of crime in element analysis is the theory of crime analysis,that is,the former is based on the thought in the sense of ought to be,and the latter is in the real sense.Whether a crime is intentional crime or negligent crime is not a problem that criminal law theory should pay attention to or solve.The specific form of fault of a crime should be stipulated by the legislature,and the role of criminal law theory is to make a more realistic explanation of the form of fault of a crime under the premise of legislation,so as to facilitate the judicial practice to identify the fault.Therefore,if we adopt the method of element analysis,then the complex crimes and other issues are just a legislative phenomenon.The element analysis is based on the objective fact level,which makes clear that different objective elements of a crime have different levels of fault elements,so as to reduce the standard of proof of some objective elements of a crime,and it is still a single fault form in the final treatment of specific cases,that is,in the sense of judicial finality.