Study On Over Subjective Factor In Criminal Law Of Our Country

Over subjective factor derived from the criminal theory of continental law system is alsoan important subject relating to constitution of crime in Chinses criminal theory. It is of greattheoretical significance and practical value to select over subjective factor in China criminallaw as the research object. Although the general viewpoint of academia is pro over subjectivefactor as a true concept, no one comments on the concept itsself. Because of this it is oftheoretical significance to study why the concept is true that can pave the way for subsequentanalysis of related problems. Moreover, it is beneficial to the further development of thistheory by confirming the connotation, denotation and property of over subjective factor basedon the analysis of different doctrines. In terms of practice value, over subjective factor playsan indispensable role in affirming crime establishment, determining crime pattern, clarifyboundaries between accusations and so on. It may better guide the identification criteria ofconcrete accusation in practice by way of teasing the current criminal law of our country andfinding out implicit over subjective factors contained. It is also beneficial to the furtherlegislative improvement via introspecting of unreasonability existing in over subjectivefactors and putting forward solutions. In our country, the research of over subjective factor isdeepening, but it is mainly about purpose crime rather than comprehensive andsystematic study. Therefore, this paper selects over subjective factor directly as the researchobject and extends the range of research. It demonstrates that over subjective factor is a trueconcept in our criminal theory, and makes an outlook on the future of over subjective factorestablished in our country’s criminal law as well.The full text consists of nearly forty thousand words and is divided into four parts todiscuss over subjective factor either in criminal theory or in criminal legislation of ourcountry.The main content of the first part is to denmonstrate the concept of over subjective factoris true in our country’s criminal law based on refuting the viewpoint that the concept is false.It also clarifies the connotation and status of the concept in crime constitution of our country.The viewpoint that over subjective factor is a false concept points out this concept fits neitherthe principle of the unification of objective and subjective nor the crime constitution systemof our country. The article refutes above-mentioned opinions one by one and puts forward this concept fitting both the principle of the unification of objective and subjective and the crimeconstitution system of our country. Therefore, over subjective factor is an academically trueconcept. In our country’s crime constitution system consisting of four conditions, oversubjective factor should be a selective and subjective element which is affiliated to thesubjective condition but independent of intention without corresponding objective factors.The main content of the second part is to theoretically analyse whether purpose, tendency,inner process or motivation belongs to over subjective factor. According to the standardconsisting of beyond intention, beyond objectivity and functionality, it is finally concludedthat only the purpose of incomplete two-conduct crime which is a kind of purpose crimebelongs to over subjective factor.The main content of the third part is to study current criminal law of our country on thebasis of theoretical analysis. Some legislative stipulations which are similar to over subjectivefactor can be found. According to the different expressions, they may be divided into threecategories which are purpose, intent and the rest. By analysing, it is concluded that only partof the crimes belong to incomplete two-conduct crime and the purposes of them are oversubjective factors. In addition, the stipulations of seeking interests for others and seekingunlawful interests for entrusters in bribery crimes are over subjective factors as well. However,they should be understood as a kind of commitment rather than purpose.The fourth part firstly analyses defects of over subjective factor. It is pointed out that thisconcept advances the time point of crime accomplishment, breaches the principle ofcompatibility of crime, responsibility and punishment, and owns the suspicion ofsevere-punishment doctrine. The issue of improperly narrow crime circle exists in part of oversubjective factors. In addition, the implicitness of this concept gives rise to double binds ofproving difficultly and operating casually in judicial practice. It can make the name andnumber of crime identified chaotically as well after being objectified. Because ofaforementioned disadvantages, the paper puts forward two kinds of amendment schemesincluding simplification of crime cinstitution and objectification of subjective factor, based onthe modifiability of over subjective factor, without violating the virtue of restraint and theprinciple of compatibility of crime, responsibility and punishmentAlthough the paper intents to solve promblrs existing in theory and practice by dispellingover subjective factor, this approach does not work once for all. Only if the study is continuous, new emerging problems can be settled well.