Reserch On The Innocence Of Statutory Crime

The Eleventh Amendment to the Criminal Law has added 6 new statutory crimes,including the crime of hindering safe driving,the crime of dangerous operation,the crime of providing fake drugs,the crime of providing inferior drugs,the crime of hindering drug management,and the crime of illegally providing trade secrets overseas.The statutory crimes have accounted for more than half of the specific provisions of the Criminal Law,while the new crime of dangerous driving in the Eighth Amendment to the Criminal Law is a typical statutory crime,with its incidence ranking first among all kinds of crimes,It means that the era of statutory offense has come.In order to apply the law correctly,it is urgent to define the crimes and non crimes of statutory offenders in strict accordance with the principle of legality.This article starts with the most basic theory of statutory crime,aiming to explore the particularity of statutory crime from the root.Starting from the origin of the statutory offense,the historical and legal origins of the written law as a definite offense are obtained.On this basis,we further analyze the basic characteristics of the difference between the statutory crime and the natural crime,aiming to explain that the legal application of the statutory crime in judicial practice should be different,and we should avoid using the traditional concept of natural crime and non crime to identify the statutory crime,otherwise it will inevitably lead to a large number of unjust,false and wrong cases.In practice,it is not uncommon to see cases with unimaginable verdict results,such as "Zhao Chunhua involved in the gun case" and "Wei’s crime of deforestation".Why on earth are similar acts convicted? What is the path of crime is the focus of this study.This paper is divided into the following parts.1、 The article first discusses the origin and basic characteristics of statutory crime.In ancient Roman law,"evil" was divided into self evil and forbidden evil.Galofalo,the representative of the criminal anthropology school,believes that natural crime is a crime that violates the two basic altruistic feelings of compassion and integrity,and statutory crime is an act prohibited by law.The boundary between the two is whether it is morally abnormal.The classification of natural crime and statutory crime by Garofalo has laid a good foundation for the study of statutory crime in later generations.As for the legal origin of statutory offense,the purpose of academic research is to divide the labor between criminal law and administrative law to deal with various illegal acts.The legal source of statutory crime refers to the scope of the administrative criminal law norms.In foreign countries,statutory criminals are generally scattered in various administrative legal norms,and there are also countries that have specially formulated administrative criminal codes.However,because China has not formulated a unified administrative criminal code,there are different opinions on the scope of the statutory criminal law.However,most scholars in China believe that the pre law of statutory offenders has the nature of criminal law itself,and its legal source is mainly the legal norms that stipulate criminal penalties for violations of administrative order.The author believes that the legal sources of statutory crimes in China are mainly as follows: First,the criminal code stipulates the crime and punishment norms for statutory crimes.Second,the separate criminal law stipulates the crime and punishment norms for statutory crimes.Third,the norms of crimes and punishments in administrative laws.This paper analyzes and summarizes the basic characteristics of the statutory offense.The statutory offense belongs to double violations,which has both administrative and criminal wrongfulness;The statutory offence is also the unity of qualitative and quantitative analysis.The establishment of the statutory offence is based on the violation of the prepositional law.The prepositional law first determines the nature of the illegal act,that is,the normative elements of the statutory offence determine the nature of the illegal act.Quantitative analysis is a necessary condition for the criminal wrongfulness of the act.In China’s criminal law,crime is an organic whole of qualitative and quantitative analysis.The statutory offender strictly distinguishes between the administrative illegal acts that only violate the pre statutory criminal law,and the criminal illegal acts that have exceeded the limit in the amount of social harmfulness to the extent that they violate the criminal legal norms;The inclusion of statutory crime to administrative illegality means that statutory crime includes administrative illegality,and the necessary stage and step for the perpetrator to constitute a specific administrative illegality;The changeability of statutory crime is rooted in the changeability of administrative legal norms,that is,the changeability of the pre law of statutory crimes,and the fact that most of the counts of crimes defined by law in the specific provisions of criminal law are in the form of reference or blank counts;As a concept corresponding to the natural crime,the statutory crime has less color of violating ethics;Because the pre law of the statutory offender is the legal norm for the state to manage the economy and society,which mostly involves a certain professional field,the identification of the statutory offender mostly involves professional knowledge in the professional field.In addition to the above,the statutory offense also has the complexity of its constituent elements,that is,it includes not only the factual elements but also the normative elements,as well as the administrative subordination of the statutory offense.These two characteristics and the characteristics of the first three statutory crimes summarized by the author are in essence one and two sides,and they are expressed differently,so there is no redundancy in the article.2、 It analyzes the crux of the dilemma of the statutory crime,such as the blank of the constituent elements of the statutory crime,the expansion of the collective legal interest of the statutory crime,the nihility of the consideration of the statutory criminal responsibility,and the procedural gap of the statutory crime.3、 Combined with cases,the author analyzes two paths of legal offense:(1)First,from the perspective of objective "illegality",simple administrative illegality is not a criminal offence.The statutory offense has dual illegality,that is,the unity of administrative illegality and criminal illegality.That is to say,the establishment of a statutory offence must be based on the premise of administrative illegality.If an act is permitted by a prepositional administrative norm and does not have administrative illegality,it cannot be considered as criminal illegality.However,only the pre administrative norms are violated,and the degree of harm of its behavior does not meet the requirements of the quantity regulated by the criminal law.It is just a simple administrative illegal act,which cannot directly turn into a criminal offence.It is not enough to simply emphasize the criminal aspect of the principle of legality,and it is not enough to make formal judgments on the conformity of the constituent elements.The constituent elements must be explained from the perspective of the rationality and necessity of punishment.The interpretation of the constituent elements should not stay in the literal meaning of the articles of law,but must be guided by the protection of legal interests,so that the illegality and accountability of the act can reach the level that is worthy of punishment.The purpose of criminal law is to protect the legal interests.We must interpret and apply the law under the guidance of the legal interests protected by the articles of law.We should not just stay on the surface of words,but make substantive interpretation to fully realize the appropriateness of punishment,so that criminal law can truly become a law that limits the abuse of public power and protects the rights of "criminals".(2)Then,from the subjective "responsible" point of view,it is inevitable to make mistakes in understanding the illegality and prevent criminal intentional responsibility.Although it is controversial whether the knowledge of illegality is an element of intent or a normative element of responsibility,as one of the conditions for the establishment of a crime or criminal liability,its function is obvious-it has the function of committing a crime or reducing responsibility.According to the "illegality cognition necessity theory",when the actor falls into the illegality cognition error,if this kind of cognition error of the actor is not avoidable,it should belong to the cause of responsibility hindrance,which is also the implementation of the concept of "responsibility doctrine" in modern criminal law.German scholar Jessek pointed out that "only those who can realize that their own behavior is prohibited by law can be the responsible behavior subject".However,the judgment of avoidance possibility of illegal cognition error cannot be cut across the board.If it is in the general life field,specific analysis should be made according to the actor’s life experience,cognitive ability,etc.If it involves the actor’s business field,or needs professional knowledge and skills,it is another matter.To sum up,the author starts with the origin of the statutory crime,finds the characteristics of the statutory crime different from the natural crime from the root,and then summarizes the path of the statutory crime.The first three characteristics of a statutory offence,"the statutory offence is double illegality","the unity of qualitative and quantitative",and "the tolerance of a statutory offence to administrative illegality",belong to the characteristics of a statutory offence.Only those who meet the above characteristics constitute a statutory offence.According to these three characteristics,the author,together with the case,discusses the path of "a simple administrative wrongful act is not a criminal offence" from the perspective of objective "illegality".Because the statement of the constitutive elements of the statutory offence may include legitimate acts and administrative wrongful acts that are not worthy of punishment.However,the doctrine of law prevails in judicial practice.When judicial personnel apply the legal interpretation,they mostly adhere to the conformity of the constituent elements of the form.In view of the defects in the wording of the constituent elements of statutory crimes,they do not make restrictive interpretation and purpose interpretation,which is actually contrary to the principle of a legally prescribed punishment for a specified crime.Interpretation is to explore the legal significance of norms.The substantive interpretation theory aims to deal with the crime in the way of substantive interpretation when some forms conform to the constitutive requirements of a crime,but the criminal punishment does not conform to common sense,common sense and common sense.At the same time,for the unreasonable criminal law provisions,the application of substantive interpretation to limit its application must be strictly based on the principle of legally prescribed punishment for a crime and in combination with the constitutive elements of the legal interests protected by the provisions of the criminal law for the cases being handled Make independent judgment on the facts of the case and the verdict.According to the characteristics of "the instability of the statutory offense" and "the statutory offense involves more professional fields",this paper also discusses the path of "illegal cognition error inevitably hinders responsibility" from the subjective "responsible" perspective.The innovation of this article should be that the author,from the perspective of the defense lawyer,starts from the confusion in the identification of statutory offenders found in the defense practice,and based on the three elements "stratum theory",from the two perspectives of objective "illegal" and subjective "responsible",summarizes the path of statutory crimes,and combines theory with practice,so as to open a bridge with the judicial authorities in the defense of statutory crimes,and reach a consensus,In order to avoid the occurrence of more unjust,false and wrong cases.The defense lawyer does not represent justice,but only reflects and realizes justice by participating in the judicial process.