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For "Social Harmfulness Theory" Defense

Posted on:2012-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:C J YangFull Text:PDF
GTID:2166330338959211Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
"Social Harmfulness"is the essential feature of crime, which is the core position in the criminal system. Whether the establishment of crime and sentencing of a conviction or a sentence of judicial practice, "Social Harmfulness" has played an important role in the theoretical guidance."But in recent years, "Social Harmfulness Theory" has been increasingly questioned and negative. The abolition of war on the"Social Harmfulness Theory"is inevitable. Each debate is a careful look which is clean-up. It provides a valuable theoretical material for us to better understand the"Social Harmfulness Theory", and let us be more rational to think the"Social Harmfulness"existence. The article starts from the significance of the defense to"Social Harmfulness Theory", and demonstrates the value of"Social Harmfulness Theory"from the practical and theoretical point of view. The article firstly analyses the content of"Social Harmfulness"from the"Social Harmfulness Theory"background of the times and the era of opportunity introduced into China, and describes the"Social Harmfulness"in the status of the original theory and reflect on the legislation. The article points out ,"Social Harmfulness"is the essential feature of a crime, and characters the characteristics of the establishment of a crime with"Criminal Illegality"and"Criminal Punishment". The theoretical status of"Social Harmfulness"determines the provisions embodied in the legislation, and the"Social Harmfulness"of acts is the basis for conviction and sentencing. Most scholars agree the maintenance of"Social Harmfulness"in the status of criminal law on common views. Subsequently, the article cites the negative view of"Social Harmfulness Theory"and its main reasons. Negative to"Social Harmfulness Theory"scholars advocated the expulsion from the criminal system framework, mostly from the uncertainty of"Social Harmfulness", not suited to the development of China's current situation, in conflict with"Principle of Legality", and too easy to lead to crime and good at breaking. Then, the article questions one by one to the negative view to"Social Harmfulness Theory", and leads to the re-understanding of the"Social Harmfulness Theory".By the property location and evaluation criteria of the"Social Harmfulness", the compare with the relationship between other concepts and the description to the status, functional term of"Social Harmfulness", the article illustrates the"Social Harmfulness"plays an important role in the criminal legislation and justice, and concludes that"'Social Harmfulness'is an important part in the criminal system".In the criminal legislation, lawmakers convicted of an act designed to punishment, because the behavior has been harmful to society and should be published. Social harmfulness is the basis for the criminal illegality, which contains the evaluation of social harmfulness. Consistent with criminal illegality, the conduct must be harmful to society in criminal law. In criminal justice, social harmfulness is also necessary to add evaluation to criminal behavior. A proviso in the Criminal Law, the judicial interpretation of"Cases of Gross Violation", the establishment of rule out social harmfulness behavior and the"Social Harmfulness"assessment of the behavior in the specific judicial practice, they all show that the"Social Harmfulness Theory"has features on"a crime"and"hunting".Understanding and criticism of the concept of crime, should be built on the basis of up to discuss China's national conditions. Vast land of China, we can not be reasonably identifiable crime simply the use of a principle of"Legality"."Social Harmfulness Theory"is in line with China's national conditions. We can not simply equal the social harmfulness to the crime and trespassing off, and can not simply understand the opposition of the social harmfulness to legality and criminal illegality."Social Harmfulness Theory"is not optional, and it is necessary in the activities of the entire criminal justice legislation. The role of"Social Harmfulness Theory"is to guide the legislation right, the tight conviction and sentencing, in order to eventually achieve the rule of law needs.This article has thirty-four thousand word ,which divides into four parts:The first part, it explains the significance of writing this article. The purpose of writing the article on the meaning and practice of justice, and the theoretical value of"the defense of truth".The second part, focusing on the abolition and the dispute on the"Social Harmfulness Theory". Starting from the background times of"Social Harmfulness Theory"and the introduction of China's era of opportunity, it parses the content of social harm. It expounds the"Social Harmfulness"to the original position, that is, the original view, to the subsequent emergence of the negative voice, and analyze the reasons for negative point of view.The third part, there is some questions to the negative on"Social Harmfulness", leading to the "Social Harmfulness" rethinking.The fourth part, through the "Social Harmfulness" of the property location, evaluation criteria of, compared with the relationship between concepts and the "Social Harmfulness" status, protection of human rights functions of the new understanding, highlighting the "Social Harmfulness" the important role of guiding legislation, impartial administration of justice.Epilogue, it illuminates on the important role and existing features on"Social Harmfulness", highlighting the need of the times.
Keywords/Search Tags:Social Harmfulness, Social Harmfulness Theory, Dispute Existing and Abolishing, Question, Criminal Illegality, Principle of Legality
PDF Full Text Request
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