The Judgement Standard And Practical Application Of Social Appropriate Theory

Although there is no complete system about social appropriate thoery in Chinese criminal law,but in judicial practice,both professional law judges and ordinary people use the actual connotation of this theory to judge and solve problems.We shouldn’t take a repel attitude to this thoery,which derived from Germen,doubting its integration with local practice.Instead,we should study this thoery systematicaly to guide our judgment and practice more accurately.The first part of the article is the ontology of social appropriate theory.First of all,the basic concept of "social appropriate" has been simply introduced,and then through the analysis with various alternative theories,the connotation of this thoery is defined clearly to suggest what problems to be solved.Social appropriate theory is an illegal evaluation theory that although on the result caused interests violatation,but because of its society generally and the necessity,rulling out its illegality.Then further introduces the theory’s origin,the development of social appropriate theory is root in the theory of pure legal interests violation,which can not get a fair and reasonable legal evaluation,forms of expression of behavior thus gradually be paid more attention in the illegal judgment considerations,and thereby puts forward the value of social appropriate theory,it has enriched the the development of the theory of actual illegality,and promoted the integration of normative criminal law and the law sociology.The second part of the article on the basis of the first part,combined with Chinese actual situation,puts forward a judgment method of the social appropriate theory in local society of our country.The first step is to judge whether a behavior is usual and necessary in society,if it is,then to judge whether the behavior is in line with the value standard of our country’s constitution and the integral legal order.The last part of the article is the practical application of social appropriate thoery,enumerating four kinds,in explaining the application of the thinking of the judgment of the illegality of neutral helping behavior,in the limit of the identification of justifiable defense,in judging the crime of extortion by threatening to exercise lawful rights and in the application of the cases with local characteristics in China.There is no abstract universal social generality,but only the social generality within specific groups,which is especially true for China,where local customs and habits vary greatly and people’s values are diverse and complex.No matter in which specific examples,the application should follow the principle that limits the scope in concrete areas to judge the necessity of a behaviour,that stands at the actor’s perspective of who is he,where he is and what he want to do,to observe the common way of a rational man,then on this basis,to determine whether the behavior is in accordance with the constitution of our country and the whole legal order the required value choice.