Study On The Locations Of Subjective Elements In The Class Of The Constitution Of Crime

It is well known that subjective elements include criminal intent,criminal negligence,criminal purpose,and so on.Since the classic class crime theory system was established,researchers have been controversial about the locations of subjective elements in the class of the constitution of crime.As we all know,the distinction between lawlessness and responsibility is one of the most important achievements in the development of criminal theory in German and Japanese in the past a few hundred years.In the field of criminal law,it has become a consensus to safeguard the distinction between lawlessness and responsibility.Obviously,the distinction between lawlessness and responsibility should be not only formal but also substantive.In order to distinguish the lawlessness and the responsibility in substance,the article holds the idea that which class of the constitution of crime we put subjective elements into according to what they reflect on.The purposes of criminal law and goals of the criminal policy are conflicted,the justifiable basis of penalty is one of the the balance points between the purposes of criminal law and the goals of criminal policy.The punishable basis of the act is an important part of the justifiable basis of penalty.Therefore,using the punishable basis of the act as a guidance to solve the problem of the location of the subjective elements means to using the justifiable basis of penalty as a guidance to solve the problem of the locations of the subjective elements.After the problem of the locations of subjective elements has been solved,the system of the constitution of crime and even the whole criminal law system have taken shape.Since this kind of criminal law system is constructed by using the purposes of criminal law and the goals of criminal policy as a guidance to solve the problem of the location ofsubjective elements,it actually belongs to the functionalist criminal law system.This article includes four parts: the introduction,the first chapter,the second chapter and the third chapter.The introduction describes the research status of the location of subjective elements and the establishment of the functionalist criminal law system firstly,and then explains the relationships between problem of the location of subjective elements in the class of the constitution of crime and the construction of the functionalist criminal law system.The preface of the second chapter holds the idea that because of the close relationship between crime and penalty,the construction of constitution of crime should be guided by the punishable basis of the act.The first section puts aside the controversial subjective elements,discusses the punishable basis of the act represented by each constituent element first,and then draws the conclusion that the representation object of the constituent element class is the invasion of the act to the legal interest.The second section also puts aside the controversial subjective elements,studies the punishable basis of the act represented by each responsibility element first,and then draws the conclusion that "the representation object of the responsible class is the effective possibility of the actor’s special prevention and the necessity of the special prevention".The third section studies what reflect by criminal intent,criminal negligence and criminal purpose respectively,and draws the conclusion that "criminal intent and criminal negligence reflect the effective possibility of special prevention and the necessity of special prevention,so the criminal intent and criminal negligence should be placed in the responsible class.The criminal purpose reflects the invasion of act to the legal interest,so the criminal purpose should be placed in the class of constituent elements.In the theory of criminal law,the problem of the location of the subjective element is not an isolated problem.It is closely related to the conflict between non-value of the act and non-value of the result,the dispute between the subjectivism and the objective,the nature of the accidental defense and the nature of the accident.Therefore,this paper makes a simple response to these problems in the fifth section.After solving the problem of the locations of subjective elements,the functionalist criminal law system has been finalized.In the third chapter,this paper mainly discusses the way of the criminal policy entering into the criminal law system and the methods to prevent the criminal policy entering the criminal law systemexcessively.