Research On The Theory Of Secondary Illegal Of Crime

The location problem of criminal law in the law system is almost come to an aggrement by the academia, that the criminal law is protector to all department law, with secondary characteristics.Yet, in contrast with the bustling scene, how to realizes the secondary characteristics of the criminal law, academia is total silence, lack of in-depth discussion. But just as scholar says, "the contemporary of China’s criminal law’s creative of norms and the operation of system, presents a more biased towards political country.Caused serious deviation between system supply and citizens’ expection." Lack of practice will make the wishes impossible under the process of political.So find a practical and effective approach will become very important.In fact, find a way for secondary characteristics is not simply the result of the theoretical deduction, but also a requirement of Chinese social reality.The political in china is gradually tend to be tolerant, people are no longer attached sucker of political rule, but out of the coercion and be the masters of free voice;In the economy, as the development of increasingly vigorous market economy, the communication between equal subjects gradually frequent, the antagonism between classes were increasingly weakened;On the culture, the basic value concepts of law such as The rule of law, democracy, human rights, has been widely spread and support.These changes are actually in demand restraint of anger, not wanton disregard.Justice is important, but the path to justice is more precious. How to make the protection status of the criminal law become operational thinking way, is one of the important proposition needs us to focus on.Criminal secondary illegal theory is a try to find the path of practice, through the construction of "pre-law-of the criminal law" thinking mode, emphasized the law environment when use the criminal law, make the use of criminal law is always the pre-law as a reference.There is no denying that, however, secondary crime law theory is discussed in many ways, but in fact is not a mature theory, on one hand, on the basic connotation of the theory and the existing idea didn’t do further detailed analysis, how to fit and how to contect between pre-law and criminal law is not explained;Still existing idea, On the other hand, the existing idea is stress on the concept’ description. less involved in discussion of specific operation method. This article along the basic thinking of secondary illegal theory, focused on explain the logical relationship between pre-law and criminal law, and organizing the thought of secondary illegal theory at the same time, in order to make the theory more theoretical significance and practicalsignificance. In this paper, the first chapter focuses on secondary illegal crime theory’s theoretical background, its background has three, first of all, the austerity of criminal law is too general, more symbolic than guiding significance, in order to avoid the austerity of criminal law superficial, it is necessary to look for austerity of implementation of the technical path;Second, the characteristics of crime concept of "should be punished by law" implied the crime has the characteristics of secondary illegal, previous academic comprehend "should be punished by law" from the consequence of crime only, which makes the characteristics become dispensable.In fact, the characteristics is demands punishment must be used after make full use of pre-law;Third, both in criminal legislation and criminal justice, should advocate a kind of scientific research methods, namely the empirical research method, the key lies in the combination of pre-law to study the criminal law.In this paper, the second chapter focuses on combing existing achievements of illegal crime secondary theory, and explains the existing results in misunderstanding and omissions.Existing idea regard all department law as the pre-law of criminal law is still in doubt.Law system itself mainly is composed of institutional provision, group of relief rules and group of punitive rule, the institutional provision is aimed at the arrangement of basic system and to assign the rights and obligations, the group of relief rules mainly focus on the recovery of harmful consequences, the group of punitive rule focuses on punishment for violations of the law and prevention. The group of relief rules and the group of punitive rule are both the legal consequences caused by violation of obligations, but the set up purpose of them are different, so the two at the time of using parallel.Secondary crime illegal theory emphasized the importance of progressive and it is used for is the premise of the same accountability purpose.In terms of criminal responsibility powerful sanctions, illegal crime of secondary emphasized the rule of punitive characteristics’ s cohesion, as for the sanctions rules is belong to civil law, conomic law, or criminal law, it doesn’t matter.In the group of punitive rule, the more severe legal consequences futher down. Its location is in the front of punitive rule if can effectively achieve the purpose of retribution and prevention, in the rules of the backend cannot defer to start.Visible, the secondary crime theory applicable scope is only in the group of sanction rules.In this paper, the third chapter focuses on the use of the the theory of secondary illegal of crime at the legislative level.The the theory of secondary illegal of crime advocated the process of law application firstly, we must attach great importance to the pre-law.The full use of pre-law, on the one hand, can achieve some slight crime is not a crime, demarcated crime ring scientifically, on the other hand can provide evidence for crimes described, the cognizance of criminal illegality through legal practice. The effective use of pre-law relies on lawmakers’ s attention, so the lawmakers in the legislation need to notice the following points :the first is perfect and clear the pre-law, such as perfecting the law system of the institutional rules, perfecting the legal penalty, etc.the second is abundant pre-sanctions rules, such as increasing the role of the civil punitive liability, rich punishment, etc.;The third is to perfect the cohesion between tre-law and the criminal law, such as the description of guilt should be based on the sanctions rules.In this paper, the fourth chapter focuses on the the theory of secondary illegal of crime in the use of judicial level.The secondary crime illegal theory was only applies to legislation, does not apply to justice.This view is clearly the result of too turst in the lawmakers’ ability. Whether the multifarious law can form a harmonious and unified system of law, even if the law system has a good relationship between internal cohesion, with the change of the society, the reducing, add, modify of pre – law, the original law system also gradually lost, at this point, even no changes in criminal law, criminal law intervention degree also had been changed, which requires the criminal law self-salvation and cognitive again through the criminal justice.Therefore, the the theory of secondary illegal of crime does not stop at the legislative level, in the judicial level still need to pay attention to the use of this theory.This chapter discusses the theory on the basic operation method of the judicial, based on the specific to distinguish the pre-law obligation and the pre-law granted legal rights, the specific studies the the theory of secondary illegal of crime applied in both cases.