Study On The Standards Of Crime And Non-crime

In Chinese criminal law ,it has existed notion that the salvo of the 13th article of Chinese criminal law is one of standards of definition of crime and non-crime for a long time. However, after revision of Criminal Law in 1997 stipulated the principle of legality definitely,"the salvo"have been questioned and challenged constantly.This paper try taking the salvo as the starting point to study the question of standard of crime and non-crime, carrying on the pertaining to criminal legislation and judicatory two distinctions of different levels, and put forward the standpoint of"the legislation level——crime concept standard, judicial level——crime constitute standard", finally put forward that the constitution of crime is exclusive standard and point out the path of the realization to guarantee human rights.In addition to preface and conclusion, this paper is divided into four parts totally, as follows:The first part:the theory of crime and non-crime.In this part,the author expounds the important meaning of definition of crime and non-crime,then introduces and analyzes briefly the correlative theories at home and board,finally try taking the salvo in No. 13 article of the Criminal Law as the starting point to study above questions.The second part :introspection of"the salvo standard". In this part,the author firstly carries on the history that compares for the system to investigate to the development grain of"the salvo standard"for know thoroughly.Then carries on analysis and introspect through the theories predicament and judicatory"the salvo standard"brings to,and point out that"the salvo standard"is disadvantage to the principle of legality .Therefore,it is not scientific by using the standard directly to define crime and non-crime.The third part :relocation of the standard of crime and non-crime. This paper claims that we should convert the research angle of view on definition of crime and non-crime,carrying on the pertaining to criminal legislation and judicatory two distinctions of different levels, and put forward the standpoint of"the legislation level—crime concept standard, the judicial level—crime constitute standard".The fourth part:discussion on the feasibility of"the constitution of crime is exclusive standard".This paper puts forth effort to inquiry into judicial level.Analyzed the basis of"the constitution of crime is exclusive standard"firstly, and then point out the path of the realization:improve the mechanism of wripping off crime in the system of constitution of crime and correct the function of the salvo, making the constitution of crime of our country can really exertive human rights guarantee of value.