Outline Of The Mode Of Constitution Of Crime

The theory of constitution of crime in China mainland is referred to the theory on judging whether committing a crime or not as the theory of the system of crime in continental law-system and the criminal element in Anglo-American law system do. The mode of constitution of crime is mainly about the elements of constitution of crime and the way in which they are combined together. A "better" mode is expected as we are studying on it.The paper can be divided into three parts: the evaluating criterion of the mode of constitution of crime, comments of our "four-element constitution of crime", suggestion and initial idea about how to gain the better mode.The first part lays stress on the evaluating criterion of the mode of constitution of crime, which is the basic of the following discussion. The evaluating criterion of the mode of constitution of crime is related to three factors: property of constitution of crime, function of constitution of crime, value of constitution of crime.The property of constitution of crime had been a focus of discussion. Three opinions are enumerated here. The author believes that a good understanding of the doctrine of a legally prescribed punishment for a specified crime can help to answer this question. Through the explaining of the "essential side" of the doctrine, the author draw a conclusion that since the constitution of crime can prosthesis the deficiency of legislation, we can call it "the theory of the constitution of crime" rather than regard it as law, viz., the constitution of crime is only a tool theory.The function of constitution of crime is referred to the good effect of constitution of crime. These functions can be divided into two kinds: (1) function as a tool. Four functions are included: function of explaining, function of affiliation, function of evaluating and function of direction. (2) function as a theory. Two functions are included: function of conformity and function of arrangement.The values of constitution of crime can be divided into two kinds: (1) the value of purpose. As a tool theory, the value of purpose of constitution of crime is the same as the value of purpose of criminal law, including liberty, order, justice and utility. (2) the value of form. Viz., the "good" quality of the theory of constitution of crime, including harmony and economy.Thus, the evaluating criterion of the mode of constitution of crime should be: whether explain the law suitably or not; whether support the function of evaluation or not; whether harmonious or not; whether economical or not. And we should not equate the four criterions because the first standard is the most important one, and the latter, the less. The second part narrates the status quo of our constitution of crime. The characteristics of it are given first, and then evaluating is made over the criterion mentioned above.The most prominent property of our constitution of crime is the "unification based on social harmfulness". The characteristics are: (1) Outer source. Our constitution of crime comes from the theory of constitution of crime of former Soviet Union, which is influenced by German classical criminal law scholars deeply. Thus our constitution of crime is in a certain way like the system of crime theory in continental law-system. The outer source also cultivates our taste of law transplant. (2) The naturalism action theory. Our research on action theory does not start until recently, so it is very plain. In the conception of crime, man is ignored. Underestimating the importance of action means giving up the function of evaluation. The natural course that the naturalism action theory embodies only lay stress on "the process of finding the guilt", therefore the factor of constitution of crime is also the factor of action, which makes meaningless the endeavor of exchanging localities of the factors to make the system more logical and more reasonable. (3) Contradictions between constitution of crime and other conceptions. Three contradictions are indicated. The first contradiction is th...