Independent Judgment On The Illegality

Illegitimacy theory, an important part of criminal theory of Germany and Japan,carries on the substantive and evaluational function of the behavior. Chinese criminal illegitimacy concept is essentially different with illegitimacy theory of Germany and Japan. So it can't implement substantive evaluation of the behavior. In fact, Chinese crime constitution theory lacks independent illegal judgment, which makes elements in rates, logical confused. In addition, the research of responsibility theory falls behind and illegal judgment is confused with responsibility judgment. All this cause that crime constitution theory can not finish "sin" function and go against the spirit of human rights. Therefore, it is imperative to make the richtswitrig judgment as an independent element of crime constitution theory to overcome the traditional four elements of the crime. On one hand it can improve the logical structure and function of the theory, on the other hand, it can conduce legitimated ground find accurate position in crime constitution theory. At the same time, it is also consistent with our current criminal policy and the protection of human rights. On the basis of considering the crime with four elements theory corresponding to Germany and Japan's,it is economic and proper to assimilate three classes crimininal theroy system from Germany and Japan.It'll also contribute to carry forword essential spirit and prosper the theory of Crimininal Law.