Three Successive Phases In Conviction

The inspiration and source of " Three Successive Phases in Conviction " came from my confusion in learning of criminal law articles and cases. First, in the criminal law articles and the judicial interpretation,there are some articles which are the provision of conviction ,but they are not belong to the Tatbestand (Crime constitution). WHY? Secondly, there are lots of cases which are clear and easy, but the provisions of lawers are avoided in the sentence. WHY? The viewpoint of mine is that besides Tatbestand, there are other factors which determine guilt and Tatbestand is not the only basis of conviction;what's more,there are some factors which are gists of conviction besides the provision in criminal law.The aim of this article is to declare and analyze all factors which are gists of conviction besides the Tatbestand or the provision in criminal law. For this aim, I constructed a theoretical model named " Three Successive Phases in Conviction ". The first phase is the keynote of conviction---- Tatbestand in chinese criminal law theory ;the second phase is reinforce of conviction----the gist in non- Tatbestand and the third phase is the amendment of conviction----factors besides provision in criminal law.As a concept in law theory, " Three Successive Phases in Conviction " is created by the writer, so it is different from any present theories of conviction; It is not the recombination or interpretion of Tatbestand theory in the Continental legal system or the Anglo American legal system and so on. Therefore the writer spent the suitable length to unscramble" Three Successive Phases in Conviction " in the first three chapters..In the first chapter, The first phase, that is the Keynote of Conviction---- Tatbestand in Chinese criminal law theory, which I analyzed and compared the different points of Tatbestand theory in the Chinese legal system, Continental legal system and the Anglo American legal system and so on. Then, I demonstrated the deficiencies and limitations of Tatbestand theory in the Chinese legal system on the only basis of conviction.According to the above, I defined the factors of conviction renewedly. Tatbestand can never be the only basis of conviction. Non- Tatbestand and factors besides criminal law should be considered in the conviction from now.The second chapter is about the second phase which is the reinforce of conviction----the gist in non- Tatbestand. For confirming the exist of non- Tatbestand, I checked and concluded different kinds of non- Tatbestand in the articles of Chinese criminal law and judicial interpretations.In the third chapter, I discussed the third phase, that is the amendment of conviction----factors besides provision in criminal law. In this chapter, I searched and found some cases to analyze and conclude the phenomena of conviction besides provision in criminal law. Then I construed the rationality of the existence.The fourth and the fifth chapter are the article's second part. In this part, I analyzed the inconsistency about the concept of " Three Successive Phases in Conviction "and the conviction according to the criminal law only and the effection and amalgamation partly in " Three Successive Phases in Conviction ".From the exist of Tatbestand non- Tatbestand and the factors besides criminal law, we can discovered the conflict between the law theory and praxis and the reciprocity between positive law and common law, and so on.