Research On The Legislation Of Circumstance Crime

The circumstance crime is the characteristics of China's criminal law and have unique character and value in China's criminal law.Although China's academic circles have studied the concept of circumstance crime,the systematic positioning of circumstance,the preservation and abolition of circumstance crime,and the judicial application of circumstance crime,there are few academic articles about the examining all circumstance crimes from the legislative perspective.The emergence of circumstance crime depends on the legislator,and the study of circumstance crime should return to the legislation itself.Therefore,this article starts from sorting out and summarizing the existing circumstance crime,explores the establishment conditions of the circumstance crime,and discusses how to perfect legislation.The full text is divided into the following four parts:The first part is the summary of circumstance crime.This part comprehensively cardings the circumstance crime in the criminal law of 1979,the criminal law of 1997 and the criminal law amendment.It's to pave the way for the following.Then clarify the concept of circumstance crime.The circumstance crime refers to the crime in which the general circumstance such as "serious circumstance" as the necessary element of the crime.Circumstance crime has the characteristics of legality,diversity and leniency.It is a different concept from the amount crime,the consequential crime,the aggravating crime and the "less serious circumstance ".The second part is the legislative basis and value of the circumstance crime.The academic circles are controversial about the establishment of circumstance crime.This part mainly shows the reasons and significance of the existence of circumstance crime.Circumstance crime are not forced helplessness by the legislators,but an active choice based on criminal policy,modesty of criminal law and the actual situation in China.At the same time,the existence of circumstance crime has three values: the embodiment of the principle of legality,limitation of criminal circle,and maintaining the stability of criminal law.The third part is the establishment conditions of the circumstance crime.The traditional crime constitution theory is not completely consistent with the legislation of circumstance crime.The existence of circumstance leads to the emergence of theoretical dilemma.This part briefly summarizes the conditions for the establishment of circumstance crime.The establishment of circumstance crime actually conforms to the theoretical theory of "qualitatively constitutive requirements + quantitatively constitutive requirements",and then expands on the specific content of each constitutive requirements of the circumstance crime.The fourth part is the perfection of circumstance crime.Since the crime follow the model of "legislative construction framework and judicial filling of content",the improvement of the crime should be carried out from the legislative and judicial interpretation levels.At the legislative level,there are problems such as improper setting of partial circumstance crimes,unscientific expression of some circumstance crimes and unreasonable setting of some non-circumstance crimes.Therefore,it is necessary to set up reasonable penalties for some of the circumstance crime and standardize the legal terminology language and modify some non-circumstance crimes to circumstance crimes.In terms of judicial interpretation,there are violations of the principle of adaptability to crime and punishment and circular interpretation,so we must adhere to the principle of judicial interpretation that suits crime and punishment.And improve the technology of judicial interpretation...