Research On Relationship Between Subjective Elements And Illegal Judgment

This paper discusses the relationship between the subjective elements of the criminal law andillegal judgment,subjective elements include deliberateness and over subjective elements (purpose,tendency, performance, etc.), illegal judgment is based on the illegality essence of the tri-part primeconstitution of continental law system, the purpose of the study is to describe whether the subjectiveelements can be the constituent elements and then become the object of illegal judgment or not.Methods are historical research, literature research, comparative studies and case studies. The articleconsists of the following components.First, I give a brief description about the location of the subjective elements since the formation ofthe tri-part system, after that,I describe the attitudes of the subjective elements at this stage in majorcivil law countries,and China also.Secondly, I discuss the location of deliberateness and dispute of behavior worthless and resultworthless to understand the lack of both,then advocate dualism, but that should not containdeliberateness and therefore deliberateness can not become constituent element to be determined,thedualism should be objective,does not contain subjective elements.If deliberateness become theconstituent elements，it may lead to illegal judgment subjectively.Again,I discuss relationship between the over subjective elements of purpose crimes,tendencycrimes and performance crimes and illegal judgment,focus on demonstrating the terminatedconsequence crime and incomplete two-conduct crime,discuss some cases to show that purpose does notimpact illegal judgement,tendency crimes and performance crimes should not exist, and over subjectiveelements are not constituent elements.Finally, I show a brief description of the importance of the subjective elements in China tradition,then,point out that the important practical significance of objective judgment illegality in present China.