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Study On Legal Problems Of Criminal Intent

Posted on:2005-11-09Degree:MasterType:Thesis
Country:ChinaCandidate:L J ChenFull Text:PDF
GTID:2166360152985247Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
For the characteristic of criminal intent, criminally there exist three theories including Vorstellungstheorie, Villenstheorie and E inwilligungstheorie. And that China criminal law adopts E inwilligungstheorie.As a mentation, criminal intent shall consist of cognition factor and will factor.The author deems that the factual cognition content in cognition factor should mainly include character of behavior, object of behavior, result of behavior, consequence of a behavior to its cause and time, address, method and means of behavior. In case of crime, result of behavior shall be regarded as the cognition content of criminal intent. The author deems that crime subject and crime object shall not constitute the contents of criminal intent cognition. For cognition degree, criminally there exist three theories including Specific Conformity, Legal Conformity and Abstract Conformity. The author deems that compared with precise Specific Conformity theory and Abstract Conformity theory lack of an objective and definite standard, Legal Conformity theory shall be reasonable.As a mental process, criminal will shall be an essential element ofcrime. And criminal behavior shall be a carrier displaying content of criminal will. Criminal will shall include will selection, will attitude and will effort. These three interdepending factors constituting crime shall promote and restrict each other.The author deems that presently some problems exist in China legislation and justice practices for criminal intent: i. It isn' t proper for existing criminal law to regard the actor' s cognition for social harmfulness as a condition of criminal intent, for the content of criminal intent cognition shall be illegal cognition, instead of social harmfulness cognition, ii. In article 14 of existing criminal law, the stipulation for "Could Cause" shall be neither precise nor scientific, under deliberation, for the cognition degree of direct intent are different from that of consequential intent. In case of "indulging while knowing inevitability" , for the ascription of his subjective psychology, criminally there exist three theories and opinions in China. The author agrees with "Direct Intent Theory" .The author recommends that the concept of criminal intent in existing criminal law should be amended as follows: Expecting or indulging the criminal result stipulated by law to occur while knowing his own behavior could cause the result shall be regarded as Direct Intent. Indulging the criminal result stipulated by law to occur while knowing his own behavior could cause the result shall be regarded as Consequential Intent.In practice, the cognizance of criminal intent shall take the following factors into account: 1. The specific behavior performed by the actor, including preparation behavior, implementation behavior and follow-up behavior. 2. The behavior result actually incurred. 3. The space-time conditions relevant to this behavior result incurred. 4. The details of the violated object. 5. The actor' s wisdom or knowledge. For the cognizance of common intent, the relationship among the actor' sintents shall be firstly taken into account. The author raises his own viewpoint on the questions of cognizance of common intent worthy of discussing, that the intent with indefinite content shall be an open intent; and general entrustment shall be different from beforehand conspiracy, i.e. On one hand, beforehand conspiracy will play an essential role in improving the criminal' s criminal will, but general entrustment won' t do. On the other hand, helping behavior will play an essential role in improving criminal' s criminal will and performing criminal behavior, but spiritual instigation behavior, not constituting common intent, won' t do.
Keywords/Search Tags:Criminal Intent, Cognition Factor Will Factor Illegal Cognition, The cognizance of criminal intent
PDF Full Text Request
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