Misleading Of Logic And Misreading Of Value

Theory of Crime Constitution is one of the most difficult theories of Criminal Law. The theory is always controversial. According to the views in theory circle, the fundamental reason for the controversy lies in whether the subject on Crime focuses on the Nature of Crime, featuring the study of "what is the so-called crime" or the practical crime identify, featuring the study of "whether this is a crime". Based on the point above, the Tatbestand only has the function of deciding the scope of criminal law illegality, and the (Tatbestandm(a|¨)βigkeit) only has the formal significance of interpreting the illegality which is the element of the crime concept in a particular way. However, if the mission of Crime is interpreted as the practical judgment of "whether this is a crime", then the judgment only applies to individual. To illustrate the illegality in general cases only is not enough. The illegality in special cases, in another word, (Tatbestandm(a|¨)βigkeit), must be added as an important element of crime. Theory of Crime Constitution serves for this practical Crime further. This point can be clearly seen in the following fact in history: based on the Psychology of New Kanteism—the Psychology which distinguishes "to-be" and "should-be" strictly, and requires "to-be" to be consistent with "should-be", the Theory of Crime Constitution became prevalent.Needless to say, both of the modes of Crime deduced from two conceptions of criminal nature have the function of protecting the human rights. In another word, the former, with the Method of Concept Law as its focus, seeks human rights security from law itself. The latter, however, seeks it from Natural Law, then developing the Existence Criminal Law Theory. Based on this understanding, I personally believe that, to highlight the valuable feature of Tatbestand, and to constitute the Tatbestand to illegality are surely aimed to persue essential justice. Outwardly, this might trigger the doubt from people whether it will weaken the human rights security. However, from my perspective, the provisions of law are in effect not quite solid when concerning with the intention of human rights violation. The provisions of law itself can hardly serve the function of safeguarding human rights.This paper will present illustration on the current Tatbestand of Continental Law in a different aspect, which involves more criticism but less construction ideas. I wish the mistakes I made in this paper will receive your general correction so that I can draw lessons from it and make progress in my later study on the Theory of Criminal Law.