On The Non-structural Base Of Constitutive Elements Of Crime

The vitality of the theory of constitutive elements of crime lies in the manifestation and mediation of the impunity mechanism of criminal law, and avoiding the malpractice of tyranny in conviction and sentencing and realizing the basic principle of Convection and penalty according to law, so that the function of the criminal law in protecting the society and that of safeguarding human rights can reach a state of balance. The structure of constitutive elements of crime includes legal structure and theoretical structure. There is a universal similarity in the legal structure of constitutive elements of crime in countries all over the world, but there exist great differences in the theoretical structure of the constitutive elements of crime. For a long time, it is commonly believed in the field of legal crime in China that the mechanism of impunity depends on the structural form of constitutive elements of crime .The"three class structure"of constitutive elements of crime of the continental law system and that of the"anti-type defense model"of the Anglo-American law system are highly valued, however, the plane, coupling structure of the four essential elements in constituting crime of our country has been seriously castigated. Adopting the methods of historical analysis and comparative study, this article tries to search for the internal rule of impunity mechanism in constructing the constitutive elements of crime. In the process of transformation from perusing the formula of the principle of criminal law to the perusing virtual principle of criminal law, the theory of constitutive elements of crime of the continental law system enriched and improved the law-breaking blocking causes and responsibility exclusion cause,and placed them in the stages of law-breaking and responsibility sharing respectively, and eventually develop into the structure form of three-stage forwarding of action deserving,law-breaking and responsibility sharing, and thus made the impunity mechanism of constitutive elements of crime quite unimpeded. Based on the tradition of common law, the Anglo-American law system adopts the confronting defense program, cites various of defense circumstances,so as to make legal defense circumstances,forgivable circumstances and procedural circumstances become the tool of safeguarding human rights and thus opened up the impunity mechanism of criminal law. In a word, the historical experience of the theory of constitutive elements of crime of the two genealogies of law tell us that, the structural base of right and wrong determined the structural form of constitutive elements of crime and eventually manifest and open up the mechanism of impunity of the criminal law. Therefore, we hold that the advantages of three- stage constitutive elements of crime model theory and double- stage model theory do not lie in the structure forms themselves, but in their non-structural base. The structural form of the theory of constitutive elements of crime and its impunity mechanism are all based on the non-structural base of constitutive elements of crime. The non-structural base of the three-stage constitutive elements of crime theory is law negates circumstances and responsibility exclusion circumstances ,while that of the double model theory is legal defense circumstances (including legitimate circumstances,forgivable circumstances and procedural circumstances),and that of the four essential elements constitutive elements of crime theory is the scenario of conviction. As the study of legal scholars on the conviction plot of criminal law relatively lags behind, which caused the出罪mechanism of the theory of constitutive elements of crime rather congested. The development of the four essential elements constitutive elements of crime theory does not lie in using the three- stage structural form of the continental law system or the double model structure of British and America, but in learning their research findings on the non-structural base, and reinforce our research on conviction circumstances of criminal law of our country, make it systematized and theorized, and make the four essential elements theory manifest and open up the impunity mechanism of criminal law in all aspects, so as to enhance the guiding of enactment of criminal law and practicability of judicial practice of the four essential elements theory.