The Defects And Improvements On China's Crime Constitution Theory

As the general theory of Chinese mainland, the theory of "four constitutive elements" has guided the juridical practice for some decades and has far reaching effect. Because of the inherent defects, the theory looms in shortages by days, not only has negative impact on the juridical practice, but also be confronted with more questions and criticism. The article analysis the defects of the mentioned theory from the following aspects:(1) uneasy to discriminate the forms of crime which are not given criminal sanctions; (2) the theoretical construct is not rigorous; (3) the weak maneuverability; (4) the misuse of the punishment power. Then, the article introduces the main contents of the theory of Crime constitution from continental law system, which expresses the theoretical construct from objectivity to subjectivity, from nominally to substantively and from behavior to liability. This theory conforms to people's logical thinking about crime and responsibility, which is more ascendant and quotable. The article also tries to establish china's stratified crime constitutive theory, which focuses on the relationship between guilty psychology and liability, between main part and liability. Also, the stratified crime constitutive theory should insists on the substantive estimation of crime, insists on the principle of the unity of objectivity and subjectivity and insists on the thinking model of "nominally to substantively, fact judgment to value judgment". As the guidance of juridical practice, the stratified crime constitutive theory will improve the defects of the "four constitutive elements" theory, which will sure help to the criminal practice.