The Essential Characteristic Of Crime In The Context Of Chinese Criminal Law

Social harmfulness is the core concept of our criminal law, also a criminal law hot spots the scholars debate on recently, the fate of the theory of social harmfulness not only affect the definition of the concept of crime, but directly related to the development or remodeling of the Constitution of Crime. Therefore, the fate of the concept of social harmfulness is of important theoretical and practical significance to China's criminal law theory for the construction and improvement of important theoretical and practical significance.Chapter one ,this paper, the implementation of new penal code and errors in the theory of social harmfulness being pointed out increasingly as the background, demonstrate the serious social harmfulness of crime as an essential feature of China's Criminal Law of the rationality and social harmfulness theory can not be replaced through the carding an--d analysis of social harmfulness with the principle of legality and the related doctrine, refuting the proposition of upholding criminal illegality as the essential characteristic of crime and in order to "rechtsgutverletzung" alternative "social harm" especially. This paper argues that the essential characteristic of crime corresponding to nonessential characteristic, in which the essential characteristic of crime emphasize on the importance of characteristics of the criminal nature. the essential characteristic of crime is he most important feature of the characteristics reflected by the concept of crime and play a basic role in the features. Harmfulness to the society develops being the-- concept of criminal law, to be attached importance to and derived from the core of t--he concept of crime in the Soviet Union and China's criminal law. Subjectivity and Objectivity of the social harmfulness theory in its development process and its theories--cal core of integration is no doubt of its merits, The core of the social harmfulness theory reflected in the three characteristics, which certainly highlights the serious social harmfulness as an essential feature of crime.Chapter two, this article describes the dangers pointed out by the academic scholars of social harmfulness theory, such doubts are mostly theoretical, including the social harmfulness and the conflict with the principle of legality , the non-standard of social harmfulness and so on.Chapter three of this paper, mainly aimed at those who question the theory of the views of social harmfulness, subjecting to punitive penalties, criminal illegality, and beneficial alternative to the status of essential characteristics that were refuted. Although the intention of seizing the "social harmfulness"and then replaced, but the content of the"Legal interest" is still uncertain, it reflects more the real benefits needs rather than making formal judgments, the "rechtsgutverletzung" not only can't benefit the proposition that "criminal illegality is the essential characteristic of crime" that rectification of names, but its own alternative to the "social harmfulness" is still worth re-consideration by scholars.Chapter four and the conclusion part of this paper exposes that the concept of social harm and the principle of legality that can be coordinated, so was the content of certainty .This paper argues that: social harmfulness throughout much of criminal legislation, judicial, law enforcement all stages of legality, in fact, it makes up for the limitations and shortcomings of the principal of a legally prescribed punishment for a specified crime, so that we could found humanity, the value factors in the Penal Code ,in case the Criminal Code too rigid. As long as we properly deal with the relationship that serious social harmfulness as an essential feature of crime and criminal illegality, the social harmfulness theory is still of vitality. being the base of criminal illegality, during the judicial process, social harmfulness and criminal illegality collaborate in the conviction and sentencing of judges. The criminal law as the main body of the form of judgments, the value judgment by social harmfulness as a basis for the offense of conviction provide substantial protection for the right judgment. serious social harmfulness as the essential characteristic of crime is well-deserved..?...