Reasonable Evidence Of The Theory Of Social Harm And Its Specific Judgment

The dilemma encountered in the evaluation of social harm is not only due to people's misunderstanding of the theoretical value of this theory and the inaccurate theoretical positioning,but also because the concept of social harm is not clear enough and lacks operational evaluation system in practice.Correcting the theory of social harm and making it play an active role in criminal law is a hot topic in the study of numerous criminal law scholars.This paper is divided into four chapters.The specific ideas of the research are as follows: Firstly,from the theoretical controversy of the concept of social harm,by analyzing the causes of disputes,it puts forward the necessity of clarifying the theoretical connotation of social harm;secondly,through the analysis of the relationship between the theory of social harm and other relevant theories in China's criminal law,it points out the rationality of the concept of social harm.Next,using the illegality theory of the civil law system to examine social harm,and by providing the historical evolution of the theory of illegality,it puts forwards to enriching the concept of social harm.On the basis of the research of the first three parts,the last part proposes to use the typed thinking to solve the evaluation of social harm in practice,and a specific analysis program is provided for social hazard assessment.The first chapter concentrates on the theoretical controversy of social harm in modern criminal law,that is,the theory of social harm has the risk of breaking the principle of Legality,the social harm is determined by criminal transgression and there is no independent value,and the theory of violating legal intrests is more advantageous.The second part of this chapter deeply analyzes the causes of these controversies in view of the above problems: from the external perspective,the excessive exaggeration of the role of formal rationality,the misunderstanding of the theoretical value of social harm,and neglecting the historical evolution of the concept of social harm are all the reasons for the above theoretical controversy;from the root point of view,the connotation of the concept of social harm is not clear enough,and there is no operational evaluation mechanism.And specifically put up with the question: how should the theory of social harm be proved.The second chapter attempts to demonstrate the rationality and necessity of the existence of social harm.In terms of rationality,it mainly analyzes the theoreticalcontroversy of the first chapter.It analyzes the relationship between social harm and other related theories,and even relies on each other and strengthens each other.In terms of necessity,social harm contributes to achieving the value of the criminal law and responding to the needs of the public.On the theoretical basis of the first three chapters,the fourth chapter discusses the concrete development of social harm in practice.In the beginning of this chapter,the internal logical structure of social harm theory evaluation are analyzed.In the second section,under the premise of rethinking the limitations of traditional conceptual thinking,it is proposed that category thinking can be used for the theory of social harm.It also summarizes the procedures for social harm evaluation and provides direction for judicial practice of conviction and sentencing.That is,in order to make the solution of difficult problems in practice more adaptable and operability,we can rely on category thinking and follow the basics of social harm prejudgment,the normative argument of the constituent elements and the reconstruction of the facts of the case.