| The theory of constitution of crime is one of the most important area in science of criminal law in a long time. During the past 10 years, articles and works about the theory of crime constitution are delivered very quickly. Many works among them are discussed about the reconstruction of the traditional theory. Surrounding that problem, there are two conflict opinions: the theory of maintenance and the theory of reconstruction. Among the theory of reconstruction, a lot of researchers identify with the culpability system of the continental legal family in Germany and Japan. In the 2009, some researchers holding the theory of reconstruction challenged the traditional criminal constitution theory by taking advantage of revising the judicial examination study guide. A great debate occurred in the field of science of criminal law. Entering 2010, the debate has calmed down gradually; however, a lot of problems have not been solved perfectly.This thesis is based on both theoretical and empirical study, grouping and making a commentary on researcher's work about the theory of the reconstruction of crime constitution in the past 10 years. The author tries to reveal the problems that ignored to varying degrees by a lot of scholars. This thesis is also engaged in a boundary to judiciary reality having been in progress to reconstruction problem view combining with investigation of judges in criminal court in Shanghai. Because of above-mentioned, the author comes up with his view to this problem. Full text makes an appointment with 55,000 characters, together with the footnote makes an appointment with 65,000 characters. The article is divided into four parts except for the introduction and refletions.Chapter 1 begins with the suddenly changing of Judicial examination study guide, and discusses the whole process of the argument in academic circle of criminal law and puts forward the leveled theory in Japan and Germany which has already became the greatest threaten to the traditional theory. Along with the textbook written by Japanese scholar OOTSUKA HITOSHI, author introduces the main context of the general theory of crime constitution in Japan: the"three-leveled theory", which combined with satisfaction with the definition of the offense, illegality, culpability and became the general theory. Then author compares the"three-leveled theory"with our traditional theory in a macroscopic way, in order to show the differences between the two theories.Chapter 2 Section 1 discusses the method and purpose of literature review; in Section 2, author makes a short exposition on the extent of collection of literature; in Section 3, author groups the collected literature by textbooks sort, works sort and articles sort; in the last section, author make a summary and commentary on the representative views of representative scholars which have been selected.Chapter 3 is a questionnaire report of the judges of criminal trial of the people's court in Shanghai. Section 1 is a brief introduction to this investigation. Section 2 makes a statistic and analysis on the problems reflected by the investigation. Section 3 is written based on Section 2. By using the SPSS crosstabs, author makes an analysis on the relationship between the reconstruction and record of formal schooling of judges, working life of judges and levels of the courts. Section 4 states the difficulties which are encountered by the theory of reconstruction.Chapter 4 gives author's opinions to the problem of reconstruction after his theoretical and empirical research. Author points out that it is a tendency that the traditional theory will be replaced by the leveled theory of Germany and Japan in the future, and the most important mission the reconstruction theory must accomplish now is to testify the necessity of reconstruction. The view that leveled theory is useless is the result of self-examination by scholars of criminal law in Germany, which cannot be used by proving the needlessness of reconstruction. Now reconstruction theory faces both theoretical predicament and practical difficulties. To overcome the obstacles mentioned above, author come up with a"three-steps"plan, which stands for a reconstructive proceed followed in order and advanced step by step. |
