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Objective Punishment Conditions Outside Chinese Constitution Of A Crime

Posted on:2015-01-30Degree:MasterType:Thesis
Country:ChinaCandidate:S S ChenFull Text:PDF
GTID:2296330431453960Subject:Procedural Law
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Scholars have different views on elements of existing criminal law. Ultimately, the different understanding of the problem lies in the different understanding of the nature of the crime. For example, what constitutes a theory of the crime should be included? What is a crime? is it true to inevitably start penalty right when a crime is constituted? If the dispute persists, it will lead to confusion on the judiciary and the staff when dealing with problems, and contrary to the principle of the unity of criminal culpability. I believe that we can learn the objective punishment conditions of penalty from civil law countries to solve our subjective guilt confusion. The theory of criminal constitution of civil law countries refers to elements of crime compliance, illegality and accountability, but the objective punishment conditions of penalty does not included. In principle, acts constitute the crime should be punished in principle, under exceptional circumstances, acts constitute a crime does not start penalty right. Penalty not only needs to have the criminal facts, but also need to have other conditions outside criminal law penalties or the objective conditions of penalty. This subject matter is called the objective punishment conditions. Drawing this theory can provide ideas for solving the problem of subjective guilt.The objective punishment conditions came from civil law countries, which only affect the right conditions to start the penalty outside the crime. It reflected in criminal law of Germany, Japan, Italy and other countries. However, it is not clearly defined in our criminal law provisions. Although many ideas were used to solve the unclear subjective fault, were not as good as using it to solve. Therefore, we need to deep understanding and research of the theory which came from Civil Law countries in order to solve the problem in our criminal code.The article is divided into five parts:The first part analyzes the existing criminal offenses in a lot of unclear issues identified subjective sin, and leads reflections on the nature of the problem of crime. In China,"criminal law" section129of the missing firearms is not reported, for example, some scholars believe that it was intentionally subjective sin, and some considered criminal negligence and held in line with sin said. Behind the dispute reflects the problem is that we have no unified understanding and awareness of the nature of the crime-the crime of illegality. The condition of serious consequences is a harm result within our system constitutes a crime or a objective conditions punishment outside the system. In this regard the scholars have different interpretations and answers. This article describes the main ideas of scholars that mainly focus on the subjective guilt and the nature of the crime. For these representative argued that each have their own characteristics, but I think the main difference is that the scholars of different understanding of theories of crime constitution. And before solving this problem, we can first have an initial understanding of the objective conditions of Civil law, which will help to solve the existing problems in Chinese Criminal Law.The second part introduces the objective conditions punishment in Civil law. We can learn it from its historical, and cited the examples of legislation about this objective conditions punishment in Germany and Japan. Objective punishment conditions originated the punishment theory of civil law criminal law which the origins can be traced back to ancient criminal discretion. At that time, the law allows a magistrate or a right entitled to consider and decide on the penalties applicable to offenders based on the identity of the perpetrator or some special circumstances. In fact, even in modern society, legislators will take into account certain objective punishment conditions when he defined an act as criminal and whether the penalty for the perpetrator. German criminal experts, for example, Francke, Liszt and Binding have great deal of research on objective conditions punishment. By analyzing the historical sources, recognizing that objective punishment conditions to start the original intention was to limit the right of the penalty, and summarizes its features, to clarify its scope significance analysis of its existence, the objective conditions punishment is based on national criminal law policy. This positioning has a certain significance for solving problems similar conditions exist in our Penal Code.The third part, analyzed the source of objective conditions punishment, we can have a deep understanding and accurate positioning on the similar conditions in our criminal law. I believe that objective punishment conditions in German and Japan are the right conditions to limit the penalty, and which exist outside the system of constitutive elements of crime. And expand the demonstration from four aspects. The analysis revealed that the similar conditions in china criminal law can be defined as the objective conditions punishment. We can learn this theory from civil law and in-depth analysis and accurate positioning, this will help to solve the unclear subjective sin in our criminal law.The fourth part analyzes the existence meaning of the objective punishment conditions in our criminal code. Demonstrate the similarities and differences of constitution of elements of crime in ours and Germany and Japan, and explore the feasibility of learning the theory, also summarizes the value of introduction this theory.The fifth part analyzes the difference between objective punishment conditions and similar concepts of punishment, because of some controversy of this theory and in the development stage, we should strictly define its meaning and characteristics, and not expand its scope. I think that we should define this theory from the perspective of national policy, and summary the independent value and significance of its existence.
Keywords/Search Tags:objective punishment conditions, substantive illegality, causality, liability
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