Research On The Non-statutory Purpose Crime

Based on the unregulated of the non-statutory purpose crime,some scholars point out that it should be negated.This paper holds that non-statutory purpose crime does not violate the principal of legality for a crime.This paper confirms its existence and have further theoretical research on this basis.The nature of non-statutory purpose crime is purpose crime.At the level of “purpose”,in order to facilitate the further research,this paper classifies non-statutory purpose crime in the same way by referring to the German criminal law,which divides the purpose crime into completely consequential crime and incompletely two-conduct crime according to the relationship between purpose and behavior.Among them,the essence of the “purpose” of the non-statutory completely consequential crime are responsibility element rather subjective illegal element,and the "purpose" is included in the direct intention so that it's not the subjective excess element.While the "purpose" of the non-statutory incompletely two-conduct crime are subjective illegal element and also a subjective excess element for its “purpose” beyond the intention.Non-statutory purpose crime with purpose crime essence,more important is the feature of "illegal" and "purpose" of "unauthorized" means that the lack of constitutive requirements description.Based on the discussion of the "purpose" of the non-statutory purpose crime in the stratum of the conviction system and the relationship with the intention,this paper thinks that the non-statutory completely consequential crime are not the open constitutive conditions or law loophole,therefore,we should take the restrictive interpretation.While the non-statutory incompletely two-conduct crime not only are open constitutive conditions but also are the law loophole,thus purposive limiting as one of the legal interpretation methods should be taken.In view of the current dilemma encountered in the application of interpretation,this paper makes a methodological conclusion on how to make the restrictive interpretation and points out that the key to the purposive limiting is control of “purpose” so as to overcome the problem that the “purpose” is difficult to be defined due to the subjective arbitrariness of the interpreter.Considering that the construction of the state under the rule of law in China has not been completed and there are massive disputes about the non-statutory purpose crime,the author thinks that the legislation of non-statutory purpose crime should be perfected in the future.In addition,in order to better respond to the needs of judicial practice,the judicial presumption on the issue of proof of “purpose” should also be regulated in legislation.The first chapter discusses the basic problem of the non-statutory purpose crime.This part expounds the essence of the “specific purpose” of non-statutory purpose crime.In response to the objection that the recognition of non-statutory purpose crime will violate the principle of legality,this paper responds by expound the historical evolution of the principal of legality and points out that it does not violate the principle of legality,we should recognize the non-statutory purpose crime,and the existence of non-statutory purpose crime has certain significance.In order to carry out a more in-depth theoretical research on non-statutory purpose crime,this paper divides it into non-statutory completely consequential crime and non-statutory incompletely two-conduct crime.The second chapter of this paper focuses on the nature of "purpose crime" of non-statutory purpose crime,aiming to clarify the "purpose".This chapter first discusses the position of the purpose in the stratum of the conviction system and then discusses the relationship between "purpose" and intention.The third chapter focuses on the "illegal nature" of non-statutory purpose crime,and on the basis of clarifying the "purpose" and combining its characteristics of "non-statutory",it answers the question of whether non-statutory completely consequential crime and non-statutory incompletely two-conduct crime are open constitutive conditions and law loophole respectively.The fourth chapter provides ideas for the adaptation of judicial practice for non-statutory purpose crime from the perspective of interpretation.as a methodological tool.Based on the basic theory of the first three chapters,this chapter points out that it is necessary to take restrictive interpretation for the non-statutory completely consequential crime,and to take purposive limiting for the non-statutory incompletely two-conduct crime.This part also expounds the dilemma faced by the interpretation of the non-statutory purpose crime at present.Meanwhile,this paper attempts to provide countermeasures through the methodological induction of the restrictive interpretation and the control of the "purpose" of the purposive limiting.The fifth chapter puts forward some suggestions to legalize the non-statutory purpose crime.Given the construction of the state under the rule of law in our country has not yet been built and many controversies that non-statutory purpose crime has faced,the paper argues that it should be legislated from two dimensions in the future.one for the “specific purpose ” should be clear in the legislation,the second in response to the “purpose” as subjective factors are difficult to recognition in the judicial practice,suggests that the criminal law should add the content of judicial presumption in the relevant purpose crime.