Crime Constitutes A System Of Rational Thinking

In our country, the theory of constitution of crime belongs to the imported product. Investigates its origin, it origins from the procedure of interrogation with torture in Italy at Europe an middle ages. Later, Feuerbach entrusted it with the significance of substantive law and caused it to become the study topic of the criminal law. The establishment of the theory of constitution of crime forms struggle of the intense school of thought, this also enables the theory unceasingly to move forward, not stagnates.The first part of this article mainly introduces the historical inspection of the constitution of crime theory. First, the author has textually researched the production of the constitution of crime and how to become the criminal law topic. Then, the author has conducted the comparative research again to the constitution of crime theory of the current three legal families. The development of the theory in continental law legal family is more complete. It experienced the classical school represented by Beling, the new-classical school represented by Mezger and the school of goal principle represented by Welzel. In modem times, the law scholars in German and Japan have not given up carrying on the transformation to this theory. The constitution of crime of common law family is formed by ontological constitution and conflicting constitution of liability because it receives the profound influence of the case-law tradition. The constitution of crime theory of Soviet Union has formed four constitutions system which is the result of the critique profiting the continental law legal family. Our country nowadays the popular four constitutions theory is also the result of transplant and development to Soviet Union's criminal law theory. In the final of this part, the author has carried on the simple comparison to the constitution of crime theory of the three legal families.The second part of this article, the author mainly unfolded the reconsideration and critique to the theory of constitution of crime in our country. Along with the time development and fundamental research thorough, our country scholars have more and more denouncement and critique towards to the prevalent system, mainly displays in the below aspects. First, they disputed that how many constitutions should constitute the system, and the focal point of the dispute mainly concentrated on the criminal object and subject of crime. Next, the dispute of arrangements of constitutions also was unable to agree, and it has caused each kind of opposite opinion according to the different standards of division. Finally, the moot issue is the relation between the constitution of crime and justifiable action, and then formed two kinds of opposite viewpoints in the theory, one advocated to maintain the existing system, another viewpoint which profits from the continental law legal family and common law legal family advocated to bring the justifiable action into the system of constitution of crime to enable the system more logical.The primary mission of the third part of this article is to discuss the value demand which the system of the constitution of crime reflects, in other words, also is to discuss the series of standards which instruct the construction of crime system. The author believed that the constitution of crime must be the specification and the standard which determines guilt. The theory of constitution of crime developed in order to prevent judge making an arbitrary decision under background of the principle of legibility, so it became to the standard which determines guilt is supposed to be natural. Therefore, the constitution of crime should include all the essential factors which could judge an action whether is guilt, but should not seek other standards outside the system of constitution of crime. The constitution of crime must reflect two factions of securing society and safeguarding human fights which the modern criminal law has. The constitution of crime should not only pay great attention to the criminal's penalty and society's defense, similarly also must full safeguard the rights which the criminal should have. Finally, the author thought a scientific system of constitution of crime should at least have three characteristic which are the logic, the experience and the efficiency.In the fourth part of this article, the author reconstructed the system of constitution of crime in our country according to the standards in the third part. The constitution of crime is only constructed by objective constitution and subjective constitution. These two parts separately includes positive constitution and negative constitution. In the concrete elaboration, first the author advocated to assimilate the negative constitution. The author inspected its origin and its status in three legal families, then discussed the necessity of assimilation of negative constitution from perspective of the theory of constitution of crime, the judicial practice and the procedure of criminal action, afterwards the author carried on the comparison research between the negative constitution and positive constitution. Next, the author advocated to remove the criminal object out of the system of constitution of crime and carried on its research in the concept of crime. Finally, the author thought the subject of crime should not be a constitution of system of constitution of crime; we should decompose it into the special status, the legal responsibility age and the legal responsibility ability. And put the special status into positive constitution of objective constitution, because it is the explanation of objective illegality and the function of it is criminalization; and put the legal responsibility age and legal responsibility ability into negative constitution of subjective constitution because of their close connection with the mens rea, which mainly profited from the related theory of common law family.The system of constitution of crime which the author reconstructed will be an open and scientific system which conforms to the request of time development and which is logical, contains the procedure value, has dynamic, embodies the functions of decriminalization and criminalization and the functions of securing society and safeguarding human rights.