The Research Of Justified Conduct's Position In China's Criminal Law

Although it was prodigiously different between civil law and common law criminal theory, and the crime system, but the two systems have many common characters both in specific arrangement of justified conduct and the expected functional design: first, as the main content of blocking Crime established, it was reviewed in the interior of criminal constitution, viz. justified conduct exists as a tache of the interior of criminal constitution. Second, it was the main topic of this paper, it was just because justified conduct exists in the interior of criminal constitution, criminal constitution of the two systems show itself a rank. This logic connection materialized the respect to the freedom and the allowance to the people's blind side, they are the uppermost value idea of modern criminal law, it can effectively restrict the penal power and protect the criminal's right.Contrast with China's criminal constitution, as justified conduct is not the Essential acts of criminal law , so criminal constitution system composed of four main elements based on the Essential acts is impossible to offer a space for the justified conduct. This mode can made the legal criminal constitution system to realize general justice.But also may confronted with the danger of losing Individual justice. Traditional criminal law adhere that criminal constitution is the exclusive basis of conviction, viz. once the conduct accords with the criminal constitution it can be convicted. However, because the justified conduct is not involved in the criminal constitution, that made justified conduct according with the criminal constitution formally is not convicted. Then there is a logic conflict that since criminal constitution is the exclusive basis of conviction why can't we convict the justified conduct that doesn't belong to the criminal constitution? To explain this conflict, other disputes exist, all disputes can not orient justified conduct clearly, viz. they always do the research on excluding the justified conduct out of the criminal constitution, so each theory has varying degrees of limitation made the conflict Unsolvable. Also , this mode made a series of abuses such as logic conflict, inequality on charge and so on. So, many scholars suggest that to solve this problem we must take the justified conduct into the criminal constitution. They believe that as long as we adhere criminal constitution is the exclusive basis of conviction, we must take the justified conduct into the criminal constitution. Only the transformation of our criminal constitution system can make a reasonable position for the justified conduct in the criminal constitution, this is not only a require to perfect the criminal constitution itself , but also a inspection process to make justified conduct a judicial structure of conviction, so as to play an effective function to ensure the proper behavior of the correct handling of the case, to protect the legitimate rights and interests of citizens, In this regard, two viewpoints exist in modern criminal law theory, one is in fact to transform the traditional Chinese criminal constitution into the similar system as civil law, and the other is to melt the justified conduct into the various elements of criminal constitution, it's purpose is to treat it as a conduct not completely filled with all the elements of criminal constitution, so as not to be convicted. Although these two viewpoints take the justified conduct into the criminal constitution, but they have different limitations, so they can't solve problems existed. Through the above analysis, one can draw a clear conclusion, that is justified conduct should be take into criminal constitution, but which element does it belong to? If we can not resolve this problem, we can't resolve the conflict. In the existing building, such conflicts can not be resolved effectively. Why not borrow some of the similarities between civil law and common law? The above discussion has pointed out that the common point of the two systems is the justified conduct is one part of the criminal constitution, this point can be made clear from the above discussion, that is justified conduct should be take into criminal constitution in China. For the second common point– the existing of the justified conduct in the criminal constitution made the criminal constitution of the two systems a rank, we haven't take into account. Next, why not reflect our problem from the rank of the criminal constitution. Chinese criminal constitutional elements have no tank, this can be conclude from the Elements of Crime sequencing and the logical relationship between Elements. How to make it in rank? We should locate the relation between justified conduct and criminal constitution. That is, take the justified conduct into criminal constitution, as a second arrangement of criminal constitution, viz. In judicial practice, the judiciary in determining whether a particular act of criminal behavior, the judge should conduct four Elements , If it entered with the second level of judging whether there is a proper subject of the existence of justified conduct. In this way, our criminal constitution has a rank, what effect will it make? I spent a good deal of space to prove this matter, Only because we understand the great significance of this theory, we will accept it, Otherwise, many people will ask what put this theory : First, This may solve the logic contradiction; Second, to achieve a balanced, beneficial to the protection of human rights; Third,Conducive to the realization of reunification of fairness and efficiency; Fourth, to Solve the practical problems in litigation practice ; Last, Limit the right of state penalties to prevent corruption in the judiciary . This shows that it can create such enormous significance to take the justified conduct into criminal constitution, this shows that the idea of considering the position of justified conduct from the point of rank is correct.Through the analysis discussed above, we can see, as the justified conduct is outside of the system of criminal constitution, This triggered a series of abuses , so we use for reference of the two systems of taking the justified conduct into criminal constitution. In the process, we should realize that justified conduct should be considered as a single arrangement in the criminal constitution, it can make our criminal constitution seems as a rank, and can solve a series of problems both in theory and practice.