On The Theory Of Traditional Crimes From The Perspective Of Pluralism

The Classical Criminal School thinks that crime is the results of the criminal’s free will. However, with the development of the criminology, people gradually realize that crime is caused by a variety of reasons. Italy criminologist Enrico Ferri thinks that crime is caused by a variety of factors, such as natural factors, anthropological factors, social factors and so on. The famous German scholar Franz Von Liszt put forward "duality in the causes of crime". Both Enrico Ferri’s "three element theory of sin" and Franz Von Liszt’s "duality in the causes of crime" stress the significant influence of social factors on crime. However, in determining the criminal the traditional theory of criminal responsibility largely ignores the reasons beyond the criminal itself. This theory is defected in many ways. Firstly, the traditional theory of criminal responsibility is not rigorous since it over-emphasizes the element of the criminal itself and excludes from consideration other factors. Secondly, traditional culpability theory is difficult to achieve substantive justice. In determining the guilt of the criminal the traditional culpability theory focuses on the factors related to the criminal and largely ignores social factors and factors related to the injured, thus failing to determine the substantive responsibility of the criminal, and the final penalty would deviate from the substantive justice. Finally, the traditional culpability theory is not conducive to alert the victims to their own fault and to take precaution measures. In short, with many defects in the traditional culpability theory, there is a need to reexamine crime with multiple perspectives.When there is the fault of the victim, the traditional theory of culpability should consider the influence of the victim’s fault. Scholars put forward a variety of theories regarding the impact of the fault of victim on the mechanism of criminal responsibility. The sort of "protection","self responsibility" and "comparative fault" theory have something in common, namely, the victim and the criminal both have responsibility, and their responsibility can be distinguished; the separability of responsibility can be examined from the tort imputation principle. The examination on the effects of traditional civil tort and constitutive elements of criminal tort can produce the general principles of tort liability. The general principles of tort liability are used to determine the fault ratio of the victim and the offender and reduce the liability of the criminal on the basis of the investigation of the civil liability ratio of the victim and the criminal, in order to punish the criminal based on its substantive crime.When there are social factors, it is necessary and also feasible to introduce social factors into traditional culpability theory. The traditional theory of crime should be revised by the following methods. quantifying the social factors as individual elements, including education, economic status, family background and other events affecting the criminal’s personality, values, and outlook. By introducing individual social factors into the sentencing procedure by means of social survey report, the judge discretion is adopted to define the effects caused by social factors and individual factors respectively, so as to attribute some criminal responsibility to the social factors, and modify the traditional culpability theory model by means of the social factors.Based on the two special cases, the traditional culpability theory can be reconstructed as follows. One is the effect of the criminal and the social factors on the crime. The criminals themselves and social factors have equivalent effect in the consideration of guilt. Two is the strict distinction between types of criminals, for example, strictly distinguish the morbid criminal and criminal of passion, implement leniency on the pathological type of morbid criminals and the criminals of passion, exercise harsh punishment on physiological type of morbid criminals according to laws. Three is to consider the social factors in the two sentence patterns, so as to realize substantive responsibility of crime and the substantive justice. Specifically, using the social investigation report as a means of introducing individual social factors as the facts for the judge’s discretion, determine the ratio of the effects of social factors and personal factors on crime. Then, by assuming the pure personal factors on the crime and the social harmfulness, together with the circumstances of the case, establish the conviction and sentencing of the offender. Finally, according to the ratio and the first sentence, modify the criminal’s responsibility, so as to make sure that the social factors share their due criminal responsibility.