Blank Counts A Number Of Problems For Study

As a subordinate conception of crime , blank description of crime is adopted largely in Criminal Law 1997. The paper sets forth the attempt of some problems about blank description of crime from three aspects:The first aspect is on the concept of blank description of crime .Scholars have much divergence about this question ,this paper accounts :(1) The bear of blank description of crime is the provision of criminal law.(2) The refer of blank description of crime mostly are "law", "regulation ", "rule and system", "provision" and so on from the angle of practical mount. While from the angle of principle mount, the refer only are the law , the municipal regulation , the departmental regulation , the autonomic provision , the single-tract provision and the municipal legislation .(3) Blank description of crime is different from reference crime in the basis , the scope and so on . (4) Whether the provision of criminal law contain the words such as "violate ...regulation" is not the essential basis for whether the crime in the provision belongs to blank description of crime .The key lies in the determination of the actual factors which constitute the particular crime regulated by the provision of criminal law whether needs refer to additional related regulated document. (5) Mixed crime obscures the key criterion of the discrimination between blank description of crime and narration crime .Fail in adopt the systematic ideas , the essence and the identical criterion ,it's not correct.About the character of blank description of crime, this paper accounts: Firstly , the actual factors which constitute the particular crime must refer to additional related regulated document. Secondly,blank description of crime is the typical narration toward particular crime in the provision of criminal law . The reason for the emergence of blank description of crime contain : the mostly comprehension of social relationship regulated by criminal law is the internal reason ; the specialization and complexity in the field regulated by a lot of law and regulation in modern society is the externalneed ; the finitude of criminal law legislated foundation .The second aspect is on the reasonal foundation of blank description of crime . In this part, the author sets forth the legitimation of the existence of blank description of crime from five aspects . (1) On the view of the principle of democracy and rule of law , blank description of crime seemly has not violate the principle of democracy and rule of law if only view it's format . But on the view of it's essence , the existence of blank description of crime leads to the actual composition separate from the punishment accordingly violate the principle of democracy and rule of law . (2 ) On the view of the principle of nature of legal monopoly , though blank description of crime satisfied the two respects that crime should have literal from and should not contain common law , administrative regulation is difficult , from strict meaning , to suit the role of "law". Moreover , the additional refer to blank description of crime in our country's contemporary criminal law , under many conditions , directly violates the principle of definition and clearness of law , only when making a definited and specific regulation to the content of the related referred regulation or system ,it accords with the principle of definition and clearness of the criminal actual factor . (4 ) On the view of the principle of the modestly restraining , controlled scope is as soon as small through simple article but the criminal scope is enlarged by the capacity of blank description of crime . The need of the crime of modestly restraining and the order preserved lead blank description of crime to a delimma . (5 ) On the view of the social function of criminal law , blank description of crime is the embody of the conflicts between the function of society protection and the function of human right protection of criminal law.The third aspect is on the assessment and analysis of blank description of crime in our country's criminal law . There is 73 accusation of blank description of crime in Criminal Law 1997. After classification , we find : (1) The number of provision of blank description is rather large and the scope which is considered law or regulation is rather wide .(2) The grade referred of regulated document of some blank description ofcrime is too low , which is violated the principle of a legally prescribed punishment for a specified crime .(3)An article includes deliberation and negligence , which is violated the principle of adaptation among the crime -, criminal responsibility and punishment. and give some advices. On the view of the crime of illegal business operation , we check the setting of blank description of crime .