Crime Negates The Subject Of Study

The crime obstructed is the series of acts that are not constitute crimes such as justifiable defense,act of rescue and so on.In Continental law system or Anglo-American law system,the crime obstructed is studied within the theories of constitution of crimes,which means that the reason that they are not crimes is in the point of view of constitutive elements of a crime.But in our traditional theories of criminal law,the crime obstructed is not the conduct element.Our traditional system of constitution of crimes is a complicated system containing the objective elements of a crime,the subject of a crime,the subjective elements of a crime and the object of crime,which seperately develop from the basis of the conduct elements.Such a system can not include the crime obstructed and do not accord with the spirit of modern form law and the request of the Principle of Verdict by Law.So I think the crime obstructed must be included into our system of constitution of crimes.This article analyse the crime obstructed in multi-angles based on the research actuality of the theories of constitution of crimes and the crime obstructed and put forward a assumption to reform the constitution of crimes in our country and the specific situation to define the the crime obstructed.This article is divided into six parts except the introduction,about 34,000 words altogether.The first part:The defination of the crime obstructed.This part discusses the concept and the character of the crime obstructed,and the stress is the situation of the crime obstructed.I think we can put the three situations falling short of the subject of a crime and the two situations of innocence under the crime obstructed to study except the eight conducts in our criminal law theory such as justifiable defense,act of rescue.In this way,the situation in our crime obstructed theory includes three parts and 13 specifications.This is barely a small regulation in the structure of the constitution of crimes,but it can make our system of the constitution of crimes more dearly.The second part:Discusses the reasonable title of the crime obstructed.This part compares numerous titles of a series of conducts such as justifiable defense, act of rescue in detail defined by the scholars of our country in a long time and finally approves the term of "the crime obstructed".The reasons are as follows:First,the word"crime"can part the conduct of crime with daily actions and commonly irregularity conducts;secondly,it is the request of of the Principle of Verdict by Law;thirdly,it can unify situations falling short of the subject of a crime and the innocence conducts which are originally studied within the system of the constitution of crimes,namely it can gather up a series of conducts having the same character.The third part:About the position of crime obstructed.This article holds that in the theory of China's existing Penal Code,crime obstructed dissociated from the system of the crime constitution is not in line with the principle of the legality request,crime obstructed must be brought into our system.Besides,the reason why we should bring crime obstructed into our system is analyzed detailedly from four aspects.They are:to bring crime obstructed into a system can make the standard of criming more clearer,specific and serviceable;it can make our system reflect the standards and process of criminal conviction at the same time;such a crime system can make the responsibility of both sides clear to ensure the realization of criminal justice;it can also succeed in the uniformity of justice and efficiency in the greatest degree.The forth part:The crime reconstruction of our crime form system led by bringing crime obstructed into crime constitution.In this part,the tentative assume of reconstruction on our crime system and the theoretical basic of the reconstruction will be elaborated detailedly,and the special role of the object of crime in the system of crime construction will be emphasized.The plan of reconstruction makes the crime form system after reconstruction have two progressive levels,the first level is about the object of crime,the main crime, crime subjective aspect,and its role is making fact judgement to the illegal conduct;the second level is composed by the object of crime and the crime obstructed,and is to do the value judgement to formal illegality.And analysis of why the object of crime becomes a negative dement in the crime form elements and the superiority crime system after reconstruction are made.Finally,we emphasize the operational problem of reconstruction in the process of criminal offences litigation,that is the problem of allocating elements of different functions to different subject to assume the main responsibility in the crime system after reconstruction.The fifth part:The basic classification of crime obstructed.In this section, the authors draw on a basic classification of the Penal Code,which divides crime obstructed into one formulated expressly and crime super regulations subject of this negates.This paper will re-examine the crime obstructed of China.Because the crime obstructed formulated expressly by the Penal Code is full of concem in Xingfalilunjie and has been reached a lot of consensus,this paper focuses on study of the super-crime crime obstructed.Analysis focused on the need of ultra-crime obstructed in the theory of Criminal Code.I think:the continuous development of social life,the lag development of law constitution,the requirements in real terms of the law and the need to fill the loopholes of the law, all of these suggest the value of super-crime obstructed.In the last of this part,the author thinks that in theory to avoid the possibility of the ultra-crime obstructed destroying the safety of law,we should make the species of ultra-crime obstructed summed up,make clear applicable requirements of ultra-crime obstructed in all aspects,so that the ultra-crime obstructed can be more standardized and operational.The sixth part:The norms of super-crime obstructed matters in the theory of China's criminal law and regulations.This paper bases on the study status of our crime form system and crime obstructed,focusing on a detailed analysis of the concepts and elements two angles on seven ultra-crime obstructed,that is action of a commitment to victims,one based on the presumption commitment,one in accordance with the law,conduct proper business,conduct and obligations of the conflict,self-help action and self-defeating behavior acts.The purpose of this part is to make the content of the ultra-crime obstructed more clear and operable by analyzing the concept and subject of a specific element of ultra-crime obstructed.