On The Actio Libera In Causa

Actio libera in causa(hereinafter referred to as the 'alic') is a heated topic in foreign and domestic forum of criminal law.The study of this topic has specific meaning in theory and practice.Recent years,the phenomenon that the intoxication and the abusing of drugs make the actor fall into the incompetence of the criminal responsibility and endanger the society arouses the concern of the public.According to the Criminal Law of the People's Republic of China Article 18 Subparagraph 4,intoxicated person should bear the criminal responsibility no matter act or negligence.This legislature which is lack of specificity is insufficient because this phenomenon contains intriguing criminal theories.This phenomenon is the subject of alic; the theories are the theories of alic.The author reconstructs the concept of alic and introduces it into china from continental law system.From the concept,the alic can be divided into the incompetence and the lesser competence alic.In constructing the theories,the author discusses the alic,basing on the classification foresaid.In the perspective of action and causality theories,the key problem of the criminal responsibility of alic is solved.This paper is divided into five parts,namely,The first part is the foreword.Because the action is committed under the incompetence or the lesser competence,the alic is said to conflict with the important motto of the Roman Law System(nulla poena sina culpa).Under the Principle of the Responsibility and the Principle of Legally Prescribed Punishment,the key problem is to find the reasonable basis of the punishment.Without the Principle of the Responsibility in China,there is no conflict above-mentioned.However,there are some commons of the Principle of the Responsibility and the Principle of Correspondence between Subjectivity and Objectivity.Hence,the alic should be parsed in the context of China,which generates so-called the conflicts.The second part is the introduction of the actio libera in causa.In order to seek the basis of the punishment of the alic,it is necessary to examine the history,status,concepts, classification and structure.From the history,though the origin and the form of the theory is not clear,the author deems that the development of the alic is the debate of the punishable from the should to the no and should,according to the analysis of the modern theories.From the status of the alic,the theory of the alic holds the negative evaluation and holds the construing responsibility theory,which is the supplement of other theories.From the Concept and the classification,the author insists that the person's act which makes him incompetent and lesser competent of bearing the criminal responsibility make him commit the action in the elements of crime.The alic can be divided into the incompetent and the lesser competent alic. From the structure,the alic can be divided into the actio praecedens and the actio subsequens which have the features of compound,cause-effect and continuity.The third part discusses the existing notions about the basis of the criminal responsibility of the alic.These theories discuss the responsibility of the alic and form the two stances which are the maintenance principle and the amendment principle.The amendable principle is the theory which holds that the intent creates at the beginning of the action.And,the amendment principle could be divided into the theory of indirect principal offender,the theory of the unified action,the theory of the dominating possibility at the actio praecedens,the theory of the responsibility of the principal offender,the theory of the causality,and the exception.But, analyzing and parsing these theories,there are no theories which can solve the conflict between the criminal responsibility of the alic and the principle of responsibility.So,it is necessary to further analyze the basis of the criminal responsibility of the alic.The forth part is the author's opinion about the alic.In this part,on the premise of the classification of the actio libera in causa,the author constructs the core part of the theory of the alic,basing on the action theory and the causality theory.The author holds this idea that the action in criminal law is the objective course which can be cognized by the cognitive element and is or should be dominated by the will element,and,through the objective condition,create the meaning of the social relationships which are protected by the criminal law.From the causality theory,the author persists the theory of corresponding causality, which contains the factual causality and the legal causality.The former analyses the ontology of the causality,the latter analyses the axiology of the causality.In defining the causality of the criminal law,the condition theory should be used as the basis to secure the scope of the causality,which is analyzed in the ontology.Then,the causality in criminal law which conforms with the constitutive elements of crime should be judged from the empirical rules, which is analyzed in the axiology.Analyzing the basis of the criminal responsibility of the alic, the author insists that under the situation of the incompetence alic,the actio praecedens considerably leads to the actio subsequens and the actio subsequens considerably leads to the harmful consequence.The whole process is the reflection of the continuation of the subject factors.The actio subsequens lack of subject factors does not have the meaning in the criminal law.In fact,it is the objective condition or media.Under the situation of the lesser competence action liberal in cause,the person's actio subsequens which is considerably lead by the actio praecedens leads to the harmful consequence.The actio subsequens has the subjective factors required by the criminal law,namely the cognitive elements and the will elements,which have the criminal meaning.But because of the lack of the capacity of the controlling,the subjective factors can not dominate his act.So the subjective factors of the actio subsequens could not withstand the subjective factors of the actio praecedens.Thus the reflections of the subjective factors of the actio subsequens are not so crucial.But the subjective factors have two effects,enhancing and impeding,which are very important in the conviction and sentencing.The fifth part mainly solves the left problems,which are not discussed above but are practical and representative,including the committing act,the suspended situation of the intentional crime and the problems of the legislature.The author keeps the idea that under the situation of the lesser competence the combination of the actio praecedens and the actio subsequens is the committing act and the actio praecedens is the committing act under the situation of the incompetence.In the suspended situation of the intentional crime,the attempt of the crime can be constituted by the break of the causality.If the reason independent of his will does not make him into the incompetence and the causality between the actio praecedens and the actio subsequens is broken,the action does not qualify the alic.If he has the features of other crimes,he should be convicted in other crimes,or he is not guilty.If the actio subsequens considerably leads to the harmful consequence under the plan of the actor,but is prevented from completing by reasons independent of the actor's will,the attempt of the alic is constituted.For the situation of the discontinuance of the alic,the discontinuance of the alic can appear in the period of the actio praecedens under the incompetence,and the period of the actio subsequens,under the lesser competence,because only in these periods,can the actor dominate his act.For the problems of the legislature,the author holds that the Article 18 Subparagraph 4 is not precise.Through the examination of the legislative mode of the Roman Law System,the legislature requires express but it is hard to enumerate completely.Hence, the author suggests that the legislative mode of the General Provisions should be advocated and the Criminal Law of Italy is a good model.