On The Subjectivity Of Purpose Crime Over Elements

The purpose crime is a special type of crime in Chinese criminal law,and it is also an important research topic in criminal law theory.This paper focuses on the research of the basic theory of the purpose crime,introduces the concept of "subjective illegal elements" and the concept of "over subjective elements" in the German-Japanese criminal law theory,with the research theme of "over subjective elements of purpose crimes".In view of the theoretical origin of the concept of "over subjective elements" ——the German-Japanese criminal theory system and the theory of subjective constituent elements,the research on the theory of "over subjective elements of purpose crimes" is carried out in the context of the three-class crime constitution theory.In addition to eliciting themes from real cases and relevant expressions in the judgments,the five chapters discuss the following key issues:Firstly,the theoretical sources and concepts of over subjective elements.With the development of the German criminal theory system and the theory of subjective constituent elements,the principle of "criminal violation is subjective and responsibility is objective" has room for exception.The existence of subjective illegal elements has undergone a transition from nothing to existence,from exceptions to principles then to exceptions.The concept of "over subjective elements" derived from German-Japanese criminal law theory has led to a debate on the authenticity of the concept after it was introduced into Chinese criminal law.This article considers that "over subjective elements" is a true concept,and refutes one by one the relevant arguments that challenge the viewpoint.It is argued that the principle of “unity of subjectivity and objectivity”and the difficulty of proving in judicial practice are not reasons for refuting the concept of "over subjective elements","Over subjective elements" is not to follow and imitate the concept of "over objective elements".The two do not need to be completely symmetrical.Secondly,the existence scope of over subjective elements in the purpose crime.In terms of the relationship between the purpose crime and over subjective elements,the article promotes "the theory of dichotomy" on the basis of explaining the theoretical classification of the purpose crime.The purpose of the completely consequential crime should be attributed to the criminal consciousness of intent,and the purpose of the shortened two-act offense should be defined as the over subjective element.Thirdly,the qualitative research of over subjective elements in the three-class crime constitution theory.The fundamental theoretical premise involved in this issue is: whether subjective illegal elements are recognized and to what extent.The answer to this question in macro reflects the opposition between the two concepts of subjectivism and objectivism,consequence without value and conduct without value.The article takes objectivism and consequence without value as its basic position,and supports the theory of partly affirmative which advocates the principle that subjective elements belong to the responsible class,with the exception of belonging to the illegal class.Specifically,the topic discussed in this article is:intentional,negligent and other general subjective elements are responsible elements,and over subjective elements that are special and selective are attributed to subjective illegal elements.Based on the clarification of the above theoretical premise,the rank of over subjective elements is finally clarified: the higher concepts of the illegal class belonging to the three-class crime constitution theory are "subjective constituent elements" and "subjective illegal elements".Fourthly,the judgment and criminal proof of "over subjective elements of purpose crimes".Since the statutory purpose crime is determined based on the explicit provisions of the criminal law,the dispute over the judgment of "over subjective elements of purpose crimes" often occurs in non-statutory shortened two-act offense.From the perspective of violation of legal interests,the article discusses the current path of judging The Crime of Falsely Issuing Special VAT Invoice in academic circles and judicial practice as an illegal purpose crime.With regard to "over subjective elements of purpose crimes",due to the difficulty and the uncertainty of the proof of the over subjective elements,the method of presumption of facts cannot meet the standard of proof in criminal proceedings,the combination of presumption of facts and indirect evidence should be adopted,instead of breaking the doctrine of the presumption of innocence and transferring the statutory prosecution's burden of proof to the defendant.Regarding the relationship between the confession and the proof of over subjective elements,the article considers that a single confession cannot be used as evidence to identify the "over subjective elements",and it is opposed to the theory of " dispensability of evidence to reinforce the confession" in academics.In the general principle of proof,the principle of "objectification" of over subjective elements is the direction,and the principle of weakening confession and strengthening the principle of presumption is promoted.When the standard of criminal procedure certification cannot be reached,no punishment in doubtful cases must be followed.