The Subjectivism And Objectivism Of Criminal Law

I always doubt whether the Criminal Modern School belongs to the category of studies of criminal jurisprudence. As regards to crime theory, it is undoubted that the Criminal Classical School advocates objectivism and the Criminal Modern School advocates subjectivism. However, it is the different orientation in the concept of crime that leads to the difference in understanding in Criminal Law of regulative value determination. In my opinion, criminal jurisprudence should grasp the position of pure criminal classical school strictly, because the Criminal Modern School, based on its research approach and basic position, exceeds or mutes the standardizing nature, and should fall into the category of the research of Criminal Theory. Certainly, the present fact is, as soon as it rise as reaction to the Criminal Classical School, the Criminal Modern School have an extensive impact on the basic theory and basic system of criminal law, and form the fierce controversy of the so-called schools. It should be admitted scientific that the Criminal Modern School surmounts the assumption of abstract people and abstract society of Classical School, but we should also see it's very dangerous to organize the reaction to crimes completely by the opinions of the Criminal Modern School. In emphasizing and standardized criminal jurisprudence, the Criminal Modern School can't have been in leading position, and we should also watch out for the influence of the school in the design of criminal legal system.The difference between the Criminal Classical School and the Criminal Modern School concentrates on the crime theory. So the dissertation has launched systematic argumentation to the subjectivism and objectivism of criminal law. The first part of this dissertation is to expound theory of the subjectivism and objectivism, to narrate briefly the intentions and characteristics of the subjectivism and objectivism, and the disputes and integration between them. The focal points of this part are to observe different manifestation in specific micro-system in vision of subjectivism and objectivism. I has enumerated nine aspects, such as the evaluation criterion of illegal behavior, Result valueless and behavior valueless etc. In the second part of the dissertation, by carrying on the textual analysis to the new and old criminal laws of our country, I point out that old criminal law is of subjectivism, and explain its possible legislative reasons, at the same time, I expound that though the new criminal law is of objectivism inclination by various arguments, it is not still the criminal law in complete objectivism. The third part of the dissertation carries on a bold proposition to the contemporary trend of the criminal law of our country. Firstly I rethink the methodology of unified subjectivism and objectivism, and points out that the common prerequisite of subjectivism and subjectivism is unified subjectivism and objectivism, the difference between which is only the different position of subjective and objective elements in establishing a crime. We either choose objectivism or subjectivism in crime theory. Secondly I analyze the respective deficiencies of subjectivism and objectivism concretely, observe the reality of contemporary China, and result in that objectivism is a kind of choice with relatively little defect. Based on the above-mentioned conclusions, At the last part I think we should carefully handle problems as social harm and personal danger in the criminal law theories of our country in vision of objectivism.