The Stereotyping Of Perpetrating Act And Its Compliance Judgment

The stereotyping of perpetrating act is that the specific norms of Criminal law makes the factual type facts before the law and with generality become the abstract and fix legal stereotype, the normative “stereotype” derives from the factual “type”, draws some conceptual boundary for “type”, and poses counter-redress for the latter. The traditional theory of social harmfulness leads to the overrunning of the material think method, moreover the appearance of “type” forms a great boost and caters to it. The application of law based on the "essence" should be restraint, stop the over-type thinking in justice. The perpetrating act, as the essential element of tatbestand, has a very important theoretical and practical value. Many scholars mentioned the stereotyping of perpetrating act, but about its meaning and normative application, had few explanation. This paper is based on the analysis of the "type",takes the intentional act crimes as the main point,combines the perpetrating act with “stereotype”,and makes certain interpretation about its applicable principles and methods.The first chapter mainly introduce the argumentation background of this paper,the concept and co-relation of perpetrating act,act as well as dangerous act. Under the background of criminal objectivism,the judicial application should adhere to the absolute principle objective going before subjective;the factual “naked” act is the fundus of constitution of a crime,belongs to the evaluation object of the tatbestand,while the normative perpetrating act belongs to the the significant evaluation of the object; the dangerous act is the outcome under the overflow of the social harmfulness theory,having the trend of over-value,lacking of norm,as a result should giving place to perpetrating act.The second chapter is the main body of this paper,mainly discusses the relationship between “type” and essential interpretation, “stereotype” and “type”.Although the scholar cring up type thinking didn’t express the real relationship of the “type” and essential interpretation,through the interpretation of the former,we can know that there are many similarities between the two,the former poses a great boost and caters to the latter.Perpetrating act is the one makes the factual typing act in the real life fixed and normative,to rise to the law "stereotype", "stereotype" stems from “type”,counter-redresses “type”, sublates “type”,also is an amendment to the over-type, not deny the “type”. "Stereotype" is the outcome combining “conceptual thinking” and “type thinking”,giving consideration to both.The third chapter also the main body, mainly discusses that based on the stereotyping characteristic of perpetrating act,in the compliance judgment about perpetrating act,should insist the combination of subjective and objective, objective going before subjective and the combination of form and substance,form going before substance.Not only avoid purely formally examining the perpetrating act,causing the void of “concept”,but also respect the inherent requirements of stereotyping;the “statutory”of "stereotype" of course includes the “statutory” for subjective,so the perpetrating act is not purely objective existence.The "stereotype" ’s material request to perpetrating act is that the nature of act has been determined and the degree of danger has been stereotyped.”Danger” is the substantial content of perpetrating act,the judgment of it should be in acting,based on the fact every-man may recognize or doer particularly aware of,the fact later identified as a reference factor,in general people standard,take normative rather than pure factual considerations.The fourth chapter mainly introduce the relationship between the stereotyping of perpetrating act and the objective imputation,refute the viewpoint perpetrating act can’t stereotype.Applying the objective imputation theory in intentional crime easily leads to logic chaos in judgment,and loses the normative evaluation function of the tatbestand,as a result we should not copy entirely the objective imputation.The stereotyping of perpetrating combining with “equivalence” theory can complete the “imputation” mission of objective imputation.But we don’t advocate the absolute rejection of objective imputation,some rules of which is necessary for reference, moreover the objective imputation can provide a good solution of imputation for negligent crime,the perpetrating act of which can’t stereotype.The purpose of this paper is to adhere to form going before substance,to control the over “essence”,in the context of rule of law now,the necessity of formal rationality should stir up our vigilance and resonance.