| The judgment concerning crime and non-crime is the most important and basic link in criminal trial. According to the general theory, composition of crime explains the forming and lawful condition of crime. It has decisive significance in the aspect of distinguishing crime from non-crime. However, at the same time, in General Provisions, the saving clause concerning "if the circumstances are obviously minor and the harm done is not serious" in the concept of crime; while in Specific Provisions, "serious circumstances", "circumstances to a flagrant extent", and "the relatively large amount involved" become the requirement of forming crime in Criminal Law of 1979 or1997. These provisions cannot be put into any requirement of composition of crime. As for these circumstances of forming crime exclusive of composition of crime,"circumstances of adjudgement" is named for its important function during the process of adjudgement. Criminal Law of People's Republic of China may be characteristic of these circumstances that become the requirement of judging crime and non-crime. A general survey of science of criminal law shows more studying "circumstances of sentencing "while less studying "circumstances of adjudgement". In fact, "circumstances of adjudgement" is more important than "circumstances of sentencing" in the aspect that adjudgement is the premise of sentencing. Academic circles of criminal theory and juridical practice are confronted with the urgent problem of how to evaluate these circumstances of adjudgement reasonably. It will benefit the perfection of criminal theory and juridical practice, therefore the thesis is chosen for my pursuing Master's Degree. The thesis endeavors to have a systematic discussion of this problem in the angle of concept, characteristic, influences, value and perfection on the basis of achievements done.The thesis includes four parts, that is, introduction, survey of "circumstances of adjudgement", influences of "circumstances of adjudgement", and value position and perfection of "circumstances of adjudgement". There are about 39,000 words on the whole, including 6,000 words of footnote.â… .IntroductionThe existence of "circumstances of adjudgement "and the meaning of choosing this thesis are elaborated.â…¡. Survey of"Circumstances of Adjudgement." The concept and characteristic of"circumstances of adjudgement", and the relationship between "circumstances of adjudgement " and "circumstances of sentencing" are illustrated for identification. As for the concept, fourteen views are cited, and the key of consensus with differences is pointed to lie in the three aspects, that is, the relationship between those with composition of crime, those with the extent existed, and those with social harmfulness and personal dangerousness. On the basis of illustrating these three aspects, the thesis points that "circumstances of adjudgement" is out of composition of crime, and it is existed in the whole course of committing a crime. It manifests social harmfulness and degree of personal dangerousness. At the same time, the distinguishment of subjective and objective circumstances of crime and non-crime will be applied in the adjudgement. As for the characteristic of "circumstances of adjudgement", specification, comprehensiveness, fuzziness, and general application are considered. As for the relationship between "circumstances of adjudgement" and "circumstances of sentencing", the thesis, in the first place, distinguishes them in the aspect of function and way of function; subsequently, points that these two have the overlapping parts in the content while the rejection does exist in the application.â…¢. Influences of "Circumstances of Adjudgement" "Circumstances of adjudgement" influences criminal legislation, criminal judicature, criminal theory and society. Doing research into these positive or negative influences will make the understanding of "circumstances of adjudgement" more thorough. Meanwhile, it will put forward guidance for its scie...
|
PDF Full Text Request