Discussion On "Over Subjective Factor" In Crime Constitution

Over Subjective Factor is an important issue in the theory of crime constitution. It is a conception established under the principle of unifying subjectivity and objectivity and based on "subjective law-breaching factor" in the criminal theory of Continental Law System. This issue relates to fundamental theoretical problems such as the understanding of crime constitution system, the comprehension of illegality essence, the limitation of liability scope and so on. Therefore, Over Subjective Factor has provided a perfect platform to further develop Criminal Law theory. Meanwhile, it also has practical significance to determine the subjective factors of motive crime in criminal practice.Part One of the thesis first differs crime constitution between China and Continental Law System and introduces "Over Subjective Factor" from the perspective of amendatory subjective and objective unity. Then, the author clears up the historical development of crime constitution theory in Continental Law System, which evolved from objective law-breaching theory to subjective law-breaching theory. Issues following these are the definition of "Over Subjective Factor", and classification of "General Over Subjective Factor" and "Specific Over Subjective Factor". After closely examining arguments of various schools in Continental Law System, like the arguments between subjective criminal theory and objective criminal theory, between subjective law-breaching theory and objective law-breaching theory in terms of illegality essence, and between worthless acts and worthless consequences in inner objective law-breaching theory, the author deeply analyses the connotation of Over Subjective Factor. Also the author comes up with the opinion that Over Subjective Factor should hold the theory of breaching crime constitutions and stick to the basic idea of worthless consequence theory. Next to this, the thesis discusses the status of Over Subjective Factor in crime constitution system on the premise of tri-part crime constitution of Continental Law System. The author holds the idea that Over Subjective Factor, whose upper conception is subjective constitutional factor as well as subjective law-breaching factor, has its reflections both on the stages of conformity and illegality. It functions both classifying types of subjective factors and determining the existence and degree of illegality. Furthermore, this part covers the influence of "Over Subjective Theory" to crime constitution theory in China and argues that it amended the traditional principal of unifying subjectivity and objectivity factors. When examining constitution of crimes, objective factors are bases of subjective factors. As a result, objective illegality should be checked first, then the existence of subjective liability should be checked. Active and Practical attitude should be bore to objectively and carefully treat over subjective factor. As to the scope of over subjective factor, the thesis denies several factors in over subjective factor, such as the inner trend in orientation crime, the inner status in expressive crime and the object in motive crime and considers that only the incomplete two-conduct crime of motive crime belongs to over subjective factor.Part two centers on motive crime in China's Criminal Law. With the platform of terminated consequence crime and incomplete two-conduct crime, this part discusses several basic issues, such as the relationship between crime purpose and crime motive, the relationship between purpose and illegality, the essence and function of purpose. Based on the classification of stipulated motive crime and unstipulated motive crime, this part judges the legislation of motive crime with reference of stipulations in China's Criminal Law and builds up the standard of unstipulated motive crime. Finally, with the entering point of the motive of incomplete two-conduct crime, this part carries out a full examination of motive crime, such as its scope of existence, pattern of crime, numbers of committed crime, the relationship among criminals, etc.The third part begins with the difficulty in proving over subjective factor. It comes up with the rule of determining purposes by talking about inversion of burden of purpose proof, determination of purpose, judicial presumption, voluntariness of confession. Also, this part fully discusses the determination and proof of over subjective factor in criminal practiceThe framework of the whole thesis is over subjective factor——motive crime——incomplete two-conduct crime——over subjective factor. The thesis focuses on motive crime especially incomplete two-conduct crime, and gradually unfolded to other issues.