The Relationship Between Elimination Of Criminality And China's Four Elements Of Crime Constitution

There are many names for the elimination of criminality in our country, such as"elimination of illegality","elimination of perniciousness","cause of preventive responsibility"and so on, and it is discussed separately as a chapter tightly after constituents of crimes in our country's crime theory system. In other words, elimination of criminality and constituents of crimes are correlated to each other. This gave rise to many problems: First, the varieties definitions of"elimination of criminality"in our criminal law caused a lot of theory chaos. Interpreted the elimination of criminality as acts that are similar to crime in appearance and agree with requirements of crime constitution but not establish crime because of no perniciousness not only makes the theoretical structure of constituents of crimes lack of integrity, but also makes the constituents of crimes a mere figurehead. It means that when judge an act whether establish a crime, we need find the substantive stantard that whether the act have perniciousness beyond the constituents of crimes. This is inconsistent with the theoretical premise that our substantive constituents of crimes is different with the formalism constituents of crimes of continental law system. It also makes our constituents of crimes lack of uniqueness and unity when convicting somebody. Second, it is exposed inadequate protection of human rights that makes the elimination of criminality beyond the constituents of crimes. Third, it makes the super-law ground for elimination of criminality doesn't have systemetical attribution.The purpose of this dissertation is discussing how to solve above theoretical predicament caused by constituents of crimes and elimination of criminality on the assumption that retain China's four elements of crime constitution. The author's point of view is including the elimination of criminality into crime object element so as to including it into crime constitution. By this way to solve many problems caused by elimination of criminality's system location.This dissertation is comprised of four parts, three thousand words in total.The first part is making a comparative study of elimination of criminality's systematic position in crime constitution at home and abroad. This part briefly descript the"cause of preventive illegality"and"cause of preventive responsibility"of continental law system, "legal defense"of common law system and"elimination of criminality"of our country in respective crime constitution theory's position.The second part on the basis of comparative study, primary propose the problems of elimination of criminality of our crime theory system: It is difficult to definite the elimination of criminality and thus caused chaos in theory,expose the disadvantage of human rights'protection and the super-law ground for elimination of criminality lack of systemetical attribution.The third part first clearing a premise of this dissertation——substantial crime constitution theory, follow analysis the different point of view about the relation between elimination of criminality and crime constitution in academia, and then forth the method of solving above problems of elimination of criminality in our crime theory system——find a meeting point between elimination of criminality and crime constitution by crime object element, and further discussed the rationality of including the elimination of criminality into crime object element and the feasibility of making the crime object element as the elimination of criminality's theory attribution and many theoretical and practical advantages.The forth part discussed a more ambitious topic based on the discussion in the full-text——whether reconstructed our traditional crime constitution or improve it on the basis of existing. This dissertation endorsed improving and perfecting existing crime constitution and according to the method described in this dissertation, our improved and perfected crime constitution will closer to American two-level model of crime constitution ultimately.