On The Defects And Reconstruction Of Crime Institution Theory

The crime constitution theory is considered as the diamond on the crown in the criminal law theory and it's an important indicator of the level of crimal law theory. The crime constitution theoretical research occupies almost half of the entire crime law and it's occupying the core status on crime theory. The theoretical research of crime constitution became the scholars' highlight, the relevant international symposiums on the crime constitution theory have been held in China. But China's crime constitution theory is easy to declare a person guilty and hard to declare a person innocent. Therefore it is queried for the deficiencies of the human rights protection. It is incompatible with the modern ideas of crime law. Without doubt this will cause the obstacles on the international communication between China and foreign countries. In the real judicial practices, because the present crime constituion theory lacks the relevant stipulations of expectant matters or blocking matters, quite many judges don't know what course to take, they give up the present crime constitution theory and make the judgments according to their own judgment of value. So the present crime constitution theory is laid aside and neglect. In such circumstances, the writer believes, only amending the existing criminal theory can no longer meet the needs of the further development of criminal law theory. By comparing the three present crime constitution theories and combining with China's national conditions, the writer makes the initial ideas to reconstruct China's existing crime constitution theory.This article is carries on the elaboration through following several aspects to reconstruct our country present crime constitution theory. Firstly the writer discusses the origin of crime constitution theory. In this part, the writer introduces the origins of the crime constitution theory in continental legal system, in the former Soviet Union and China, Anglo-American legal sysem. Then the writer ananyses the superiority and inferiority of these three crime constitution theories. After that, the writer gives the reasons why China's crime constitution theory should be reconstructed: firstly the existing crime constitution theory does not reflect the dynamic process of conviction.This is not beneficial to the defense for the accused and the protection of human rights; secondly the function of the existing crime constitution theory is too simple; thirdly the existing crime constitution theory is not beneficial to eliminate the danger of positivist crime law. By analysing the disadvantages of the existing crime constitution theory and combining China's national conditions, the writer makes the initial ideas to reconstruct China's existing crime constitution theory. In this part, in order to solve the problem what status the anticipated possibility is in the crime constitutions and how to apply the crime constitutions of Criminal Law while not disobeying the principal of scaling the verdict according to law, the writer advocates open crime constitutions. In the end, the writer expounds how to reconstruct the multi-level crime constitutions.