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The Principle Of Subjecitve And Objective’s Unification For Conviction In Our Country

Posted on:2015-05-15Degree:MasterType:Thesis
Country:ChinaCandidate:F W ShiFull Text:PDF
GTID:2296330467967776Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The principle of subjective and objective’s unification for conviction is one of basicprinciples complied with the judicial department of our country, but the criminal code of ourcountry doesn’t make specific rules for it, and the academia doesn’t study it comprehensivelyand thoroughly. How to understand this principle at the background of criminal law’s rulingand make it play a role in safeguarding right and restricting power is an urgent subject in thetheoretical study of criminal law. On the basis of evaluating the views about its formationprocess, the auther illuminates this principle’s connotation and difference detailedly, points itsdefects and puts forward solution. Finally, inconsistency of subjective and objective verifiesthe solution’s scientificity.There are four parts except introduction, a total of about40,000words, and its maincontents are as follows:The first part: the analysis about formation mechanism of the principle of subjective andobjective’s unification for conviction in our country. After analysis, subjective and objectiveunification principle had the same meaning with this principle. The principle of subjective andobjective’s unification for conviction comes from the Soviet Union’s criminal law andcriminal constitution theory, dating back to penologist’s correct criticism about Feuerbach’scriminal constitution theory. At the early stage of the principle of subjective and objective’sunification for conviction in our country, the principle is just an apuppet. With thedevelopment of criminal legislation and criminal theory, this principle has fit our country’ssituation.The second part: General theory about the principle of subjective and objective’sunification for conviction in our country. Although our crininal law doesn’t make rules for thisprinciple, there are many rules of criminal law reflecting it. Considering the formationmechanism, criminal rules’ reflection, the basic idea of criminal law ruling, the connotation ofconviction, objective and subjective, the connotation of the principle of subjective andobjective’s unification for conviction should be define as follows: when determining thenature of harmful behavior after finding out the case facts, the judge should understand thecriminal constitution elements and their relations correctly according to the legal criminalconstitution which is the unity of subjective and objective, then determine the nature of the heard behavior by inspecting the conformity of the elements of trial behavior and the criminallaw provisions. Then from the perspective of the principle of conviction, pointing thatobjective imputation, subjective imputation, objectivism and subjectivism which convictedonly based on subjective or objective without comprehending the dialectical relationshipsbetween subjective and objective is one-sided. Our country’s principle of subjective andobjective’s unification for conviction emphasizes that the basis for criminal conviction is theunity of subjective and objective elements, is a comprehensive, scientific principle.The third part: the defects and perfection of the principle of subjective and objective’sunification for conviction in our country. In this section, we are to solve the problem of howthe four elements of criminal constitution achieve dialectical unity under the connotation ofthe principle of subjective and objective’s unification for conviction. As the standard forconviction, the criminal constitution under the connotation of the principle of subjective andobjective’s unification for conviction does not explain how the legal criminal elements isunified. The defect of lacking dynamics lead to the phenomenon of the subjective imputationand objective imputation, containing the function to instruct conviction. Both improved theoryand refactoring theory put forward proposal to solve the problem of lacking actual operability.The former advocates that we should maintain existing conviction standards, and perfect theprinciple through the increase or decrease of crime constitutive requirements, rearrangingelements or establish elements level. The latter appeals that we should abandon the criminalconstitution theory and reconstruct the standard of conviction. Criminal constitution is animportant part of the connotation of he principle of subjective and objective’s unification forconviction. The model to improve the principle of subjective and objective’s unification forconviction determines the direction of it. This paper argues that on the basis of traditionalcriminal constitution theory and provision of China’s Criminal Law, we should analyze thelegislative purpose and the inner relationships of the elements of criminal constitution. Thenwe will find criminal constitution in our country is also dynamical. Thus, maintaining andre-interpretating the existing criminal constitution is the rational choice to solve the problemof lacking practical guidance function.The fourth part: the appliance of the principle of subjective and objective’s unificationfor conviction in our country. In this section, we are to discuss the the appliance of theprinciple of subjective and objective’s unification for conviction. Both civil law and China’scriminal law advocate the principle of subjective and objective’s unification for conviction. However, there are different results when dealing with the same problem on which occasionthat subjective and objective is not unified. After a comparative analysis of various academicperspectives, we draw a conclusion: combined with earlier specific interpretation about theprinciple of subjective and objective’s unification for conviction, we should stand on theposition of objectivism, understand the criminal constitution of attempted crime according tocriminal law, and determine the nature of the action. This part is the verification of abovesolutions.
Keywords/Search Tags:unity of subjective and objective, criminal constitution, inconsistency ofsubjective and objective, application
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