On The Objective Conditions Of Punishment For Reference

Many new economic criminal offences are established in CriminalLaw of the People's Republic of China, which have brought much disputeon how to understand and interpret the specific crime in theoreticalsystem, furthermore how to apply it to cases in practice, this problem is inmuch controversy in the form of Mens rea especially. The direct reasonmay be the vagueness of the statute. As a general rule, a criminal offenceconsists of both the Actus reus (external element) and a Mens rea ( stateof mind ) .The Actus reus is not only just action of conduct on the part ofthe accused, it may causing a certain prohibited consequence. It iscommon that to make up a economic crime requires a certain prohibitedconsequence .The difficulty lies in that the certain action is takenintentionally or knowingly by the accused while the prohibitedconsequence may not within the scope of the intention .As a result, wheninterpreting a specific economic crime ,it is easy to reach an conclusionthat the form of the Mens rea that the offender must possess at the sametime as committing the Actus reus may be intention or negligence .Suchopinion is prevailing ,such as in Article 142, Article 186, Article 187,Article 188,and so on . Is the opinion correct? Different scholars holddifferent views. On the author's opinion, since the law places greatweight on the distinction between intention and negligence, they cannotappear in the same crime at the same time. The dispute in theory makes alot of trouble when applying the law to cases in practice, as it cannotprovide standards for judgment. It is not practical to suggest that thelegislators amend the statute in future, which is made based on thecomplex life . Therefore the only way to solve the problem is to try tointerpret it more reasonably and clearly. Rather than be confined to thetraditional theory, the author tries to regard part of the prohibitedconsequence as a punishable condition with the intention to cast the lighton this unresolved problem. The thesis is composed of six parts. Part one is the preface in whichthe author introduces the definition of punishable condition briefly andbrings the dispute in the form of the Mens rea of some economic crimesin theory after analyzing several different opinions. In part two, the necessity of planting the punishable condition intoour criminal law is discussed .On one hand ,it can constrict the use ofcriminal law in order to make full use of limited judicial resources tocombat effectively against much more serious crimes, on the other hand,it can encourage the criminal to try his best to prevent more harm beingdone. . The author gives more detailed knowledge on the punishablecondition from following aspects: its origin, definition, features andsignificance in part three. In part four, a through analysis on its feasibility as a element incrime constitution is made by means of comparison. In part five, the author tries to resolve the difficulty where to put it incrime constitution in the theoretical system about criminal law of chinaand reach a conclusion that it is one of the elements of Actus rea which isharmony with the correspondence principle. In part six, several confusing concepts are distinguished frompunishable condition in order to be undersood thoroughly and appliedto juridical practice correctly.