Study On Legislation Issues Of Crime Of Passion

Although the crime of passion hasn't been clearly defined by Chinese criminal legislation and judicial interpretation, to the common citizens, it often appears frequently in social reality and it is not a rarity that defendants in certain cases are claimed to be considered as passion offender and therefore given lenience. However, the crime of passion was usually those that severely impair others'right to life and health. Therefore the principle of legally prescribed crime and punishment should be strictly observed in corresponding cases. This thesis takes passion killing as a clue, and studies on the legislation issues of crime of passion. The full text is divided into three parts, the first chapter deals with the basic theories referring to criminal legislation in foreign countries. The second chapter discusses the necessity of legislation issues and the third chapter illustrates the feasibility of legislation issues, and gives specific superficial legislation suggestion.The first chapter reviews the basic theories on crime of passion. Firstly,because we have no legislation of the crime of passion in the criminal code,on the basis of an introduction of overseas criminal legislation and criminology research achievement, a tentative definition of"crime of passion"is given in criminal law. The common citizens have usually vague understanding on the crime of passion. Next, the main characteristics of the crime of passion are explained, especially eruptiveness, specialty and the emotionality. Finally, it introduces the five constitutive requirements of the crime of passion: the objective cause, the subjective requirement, the time requirement, the object requirement and the charge requirements especially the objective cause. And it expresses the particularity of the crime: it is the product of the combination of moral factors and the impulsion factors. So we can know that why the criminal of passion should be decressed the punishment. The second chapter demonstrates the necessity of the legislation. Firstly, it discusses the realistic foundation of legislation. Because our country hasn't clearly defined the crime of passion in Chinese criminal legislation and the crime has only been considered as the plot to be given lenience in the judicial practice, and it is easy to produce malpractices in judicial practice: Firstly, the judge's discretion right lacks the legal restraint. When the judge decides a case, due to lack of legal basis, it is easy to cause"the same case has different trial results". Secondly, the judicial practice lacks unification in deciding a case. In different courts even in the same court, different judges have different regulations; therefore,"the destiny of the citizen changes frequently because of the change of the court replacement". Thirdly, it is easy to confuse the crime of passion and the related crimes. Because in our country there is no legislative definition on the crime of passion, and there are not much relevant systematic theoretical researches, there is no uniform standard in the definition of passion criminals and the crime of passion. The common citizens have only vague understanding, and they will easily confuse it with the other crimes. Then, it introduces the theoretical foundation of the crime of passion legislation. First, it analyses the legal responsibility foundation, evidence and the degree and legal responsibility. We analyze the criminal responsibility factors of the doer, on the basis of the principle of shared responsibility; therefore, the degree of the responsibility of the passion offender is decreased. Second, it introduces that the discretion of punishment must be adapted to the crime and dangerous disposition, and displays the full effect of penalty. Third, the discretion of punishment fair angle, it introduced that the discretion of punishment must be delinquent account with the person dangerous disposition violates and the fervor adapts must be balance, display penalty's desired effect fully suitable penalty to the criminal of passion.The third chapter introduces the feasibility of legislation of the crime of passion. Firstly, this part reviews the legislation on the crime of passion both in and abroad our country. On the one hand, by reviewing the regulations on the crime of passion throughout the laws at different times, we know that the criminal legislation has its deep cultural and the historical origin. On the other hand, we inspect the legislation abroad. Secondly, we put forward my superficial legislation proposal after combing and comparing and inducting the overseas legislation. Firstly, there are the statute legislation pattern and the specific law legislation pattern in the way of legislation abroad. The statute legislation pattern has general provisions, the specific provisions and the general plus specific provisions. Next, the Continental Law System and Anglo-American Law System have the same punishment principle. The crime of passion in the countries' legislation has two ways: First, we stipulate the concrete legal punishment scope, and the other way is only to stipulate crimes which"belong to the cases to be given lenience". And then it explains the reasons why crime of passion should be given lenience from three aspects. Finally, taking the case of being in existence, this part analyses the differences between the Continental Law System and Anglo-American Law System. And it analyzes the insufficiency in our country's present criminal law, and then a legislation mode, punishment principle and the scope of crime are conceived, then specific legislative suggestions which are in accordance with the situation of our country are put forward: we increase the following content in the criminal 234th of the crimes of murder as the third section: Because of the maltreatment, the significant insult behavior, the victim treated either himself or his close relatives, the criminal caused the damage to the victim in the passion. We must decrease the punishment in the criminal law. If the criminal caused death to the victim in the passion, we can decrease the punishment according to the criminal law 232nd. This thesis is expected to be beneficial to the theory and the legislation on the crime of passion.