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Localized Research Of The Theory Of Subjective Penal Conditions

Posted on:2016-03-18Degree:MasterType:Thesis
Country:ChinaCandidate:M L ZhaoFull Text:PDF
GTID:2296330461986386Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Unifying the subjectivity and objectivity, opposing subjective and objective culpability have became the basic standpoints, as human rights has became a popular topic in modern criminal law. However in Chinese articles of criminal law, there exist some provisions of guilt which are vague with subjective faults. These provisions are dramatically hard to be explained with traditional theory of fault and lead to difficulties of the subjective confirmation of the guilt. In fact, German, Japan and other nations which have the same criminal law system are facing the same problem, and they utilized theory of subjective conditions of penalty to handle it. Together, applying the theory of subjective conditions of penalty and admitting the conditions of guilt which are irrelevant with the subjective culpability in Chinese law are the subjective conditions of penalty, is a considerable method for our law system to get rid of the present problem.There are five sections in this article.The first section is an introduction which briefly introduces the origin of this problem, research purpose and research methods of this paper.The second section expounds the existence of this problem in the criminal law systems of China and foreign countries. The difficulties of explaining some conditions of guilt in the provision of Chinese traditional fault theory to provisions of guilt, lacking of clear indication to the form of these guilt in legalization, the problem of what attitude of psychology should we hold to the results that harm the society, the vague of the indication of the result of harming the society to guilt, the debating on how to certain the subjective guilt which lead to the guilt, and the existence of three main doctrines which are "doctrine of intention", "doctrine of changer" and "doctrine of double guilt",have been revealed. Then, the theory of subjective conditions of penalty in the law system of German, Japan, Italian, Taiwan area of great China, and other nations or regions which share the same criminal law system with mainland China will be introduced. In order to seek a solution from other regions, and to distinguish the concept, classifications of subjective conditions of penalty, to clarify the relation between the meaning of "subject" and subjective reasons of without penalty.The third section introduced legal reason of the existence of subjective conditions of penalty. Firstly, the truth that subjective penal conditions, which had been set up based on the purpose of criminal policy, is the reason of restrict punishment has been expounded. Then, this paper explained why there is no conflict between subjective conditions of penalty and the Chinese criminal law terms about intentional crime and negligent crime. At last, the conformance of subjective penal conditions and the principle of unifying the subjectivity and objectivity have been elaborated, the two are dynamic unified.The fourth section clarified the system arrangement of subjective penal condition. The position of subjective conditions of penalty in the three tier doctrine has been analyzed, and then the solution of subjective penal conditions in Chinese criminal law has been suggested. Finally, subjective conditions of penalty were identified in Chinese criminal law terms in this paper.The last section is the conclusions. It also inducted some related contents of subjective penal conditions.This paper is creative at exploring the necessity and validity of using subjective penal conditions and finding the position of subjective penal conditions in our law system, and at clarifying the law terms related with subjective conditions of penalty in Chinese criminal law. Compare with previous research which only analyzed common terms of subjective penal conditions, this paper has reorganized all the terms of subjective conditions of penalty.
Keywords/Search Tags:subjective conditions of penalty, criminal policy, unifying of subjectivity and objectivity, criminal constitutive system
PDF Full Text Request
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