Reflection Of The Theory Of Constitution Of Crime

The theory of constitution of crime is the hot and core question of criminal law, which is the standard to certify whether a behavior constitutes a crime. On the social basis of constant emphasis on Democracy and Humanity, it is quite necessary for us to enhance the study of the theory of constitution of crime. This thesis analyses the theory of constitution of crime in four Parts as follows:Part One The introduction of the theory of constitution of crimeIf we want to know a kind of theory thoroughly, we must be clear about its history. So this Part analyzes three kinds of theory of constitution of crime, which developed from different cultures including the continent law theory of constitution of crime, the British and American law theory of constitution of crime and Chinese theory of constitution of crime. Owing to the clearness of the history of the theory of constitution of crime, it is easy for us to master the essence of the theory of constitution of crime. Because the theory of constitution of crime has extensive knowledge and profound scholarship, it is difficult to narrate it clearly with several ten thousand words. Therefore the author of this thesis selects the object of crime as the perspective and hopes to analyze it in depth.Part two The defect of the traditional theory of constitution of crime in China form the perspective of object of crime.Although our country's theory of constitution of crime develops over a long period of time and already occupy a dominant position, but it is far from perfect. There are there defects at least: Firstly, it leads to heavy penalty. Because the object of crime is regarded as a respect of constitution of crime in our traditional theory of constitution of crime, it results in that the judge takes the value-judgment into account at first in a trial, therefore neglecting the offender's subjective sin or when the offender deserves lighter penalty, but seeing the encroachment on the interest that the laws protect, the judge usually neglects the favorable cases on the offender to lead to heavy penalty. Secondly, practical defect. On the one hand, because humans have finite thought, they usually can not consider all the four respects of constitution of crime in the plane system. If the offender's sin is neglected, it will probably lead to verdict according to the objective cases. On the other hand, the object of crime belongs to the content of crime concept itself, and if a behavior conforms to the rest three respects, it constitutes crime and reflects crime concept naturally, therefore the object of crime being regarded as a respect of constitution of crime results in reevaluating the object of crime. Thirdly, the defect in virtue manipulation. The formal manipulation means convenient application to a large extent, the theory of constitution of crime in China has advantages in this aspect. But it has defects in virtue manipulation, on the one hand, it can not provide model for the judges in trial; on the other hand, it can not assure people's forecast probability.Part three The alteration and defects of our traditional theory of constitution of crime in the perspective of object of crime.The object of crime being regarded as a respect of constitution of crime will cause fatal defect, so some scholars contend that the traditional theory should be altered in the traditional theory framework; the object of crime should not be regarded as a respect of constitution of crime. But the altered theory just prevents the object of crime from being a respect of constitution of crime, therefore the object of crime still has the effect as a respect of constitution of crime virtually. It can not only avoid the object of crime affecting as a respect of constitution of crime but can not coordinate the relationship of reasonable act and the theory of constitution of crime. Consequently, not just the object of crime being regarded as a respect of constitution of crime will cause fatal defect, but the plane system itself has unavoidable defect. So that the alteration of our traditional theory of constitution of crime can not just be restricted in the traditional theory framework but breakthrough from a new perspective should be made.Part four The avocation of three-dimensional theory of constitution of crimeBecause our country's traditional theory of constitution of crime and the altered one neither can give full play to its function and it is impossible to reconstruct the theory thoroughly, so it is undoubtedly a sensible option to introduce the mature foreign theory. But what is the foundation to introduce the foreign theory? This is decided by its comparable advantages. It have six advantages at least, and they are listed as follows: Firstly, the object of crime is not regarded as a respect of the theory of constitution of crime; Secondly, value evaluation shows different levels; Thirdly, the process of conviction is clearly displayed; Fourthly, the right definition of reasonable act; Fifthly, the comparable advantages of practice; Sixthly, the advantages in virtue manipulation. But there are two kinds of mature theories; one belongs to the continent law, the other the British and American law theory. But which one should we introduce? I think we should introduce the continent law one in the cultural environment, process formal angle of view. If we introduce the continent law of constitution of crime, the object of crime should be redefined. From the formal analysis, the object of crime, as the content of the concept of crime, matches virtue illegality of the continent law theory of constitution of crime. But the constitution of crime conformation has given rising to illegal presumptions, therefore it takes some of identifying crime function of the object of crime, it also proves why our country's object of crime can not only be regarded as a respect of constitution of crime but can also be the symbol of crime virtue to carry out excepting crime in trial.