Abstract judicial practice in China has followed the theory of four elements constitute a crime, but theorists debate on crime already constituted last long, focused on four elements is to uphold or improve constitute a crime, or to the three classes constitute a crime shall be reconstructed. Article from a comparative perspective, from the concept, structure, access mechanisms, so these two crimes constitute a crime shall be discussed theories.
Paper Keywords constitute four elements three levels of crime
In recent years, the criminal law theories constitute a crime in our country and in Germany, Japan became a hot research, such as Germany's Hills, the purpose of such acts of Wiltz and subjective elements of crime and criminal elements and other aspects of the overall research, Japan Ida Leung, Chun-chun, Takayuki, mountains Keiichi, Takeda straight Yamaguchi thick and so subjective element of an offense now with the purpose of behavioral theory and other aspects of the research, as well as South Korea's Kim show, Pei Zhong and large systems of crime on the other aspects of the studies that have greatly enriched and improved the theory of crime constitution, from Behring's "objective, neutral" crime constitution theory to Luo Kexin's "contains all the elements of the overall lawless" crime constitution theory of ZHENG M, Xingliang commission of a crime such as the theory of system integration and rank studies constitute a crime, criminal system makes three classes of three-dimensional theory with four elements constitute a crime more clarity plane, thus forming two clear-cut research genre.
All along, China's criminal law is used in the former Soviet Union due to the four elements of crime constitution theory in recent years, on the theory of crime constitutes a theoretical circles toward the hot debate, there persist, improve, and direct introduction of several innovative models major point, the first two perspectives classified as "improved" theory, the latter two perspectives classified as "reconstruction theory." improvement of the position is to adhere to the "four elements" constitute a theoretical framework to reconstruct the position that the use of civil law Department of the "three class" Crime Constitution Theory. Currently, practitioners still use the "four elements" constitute a theory seems to have been subjected to judicial examination theorists debate the impact of the << 2009 National Judicial Examination counseling books >> adopted " three class "Crime Constitution Theory, and still uses the" four elements "constitute a theory.
One, two theories constitute a crime under the concept of
Constitute a crime is considered a crime under the Penal Code specifications and models, different theories constitute a crime, for there are different definitions constitute a crime. Four elements constitute a theory, the constitution of crime refers to criminal law, the decision an act of social harm Its extent, and for that conduct constitutes an offense must have a series of subjective and objective elements consisting of an organic whole. three sectors constitute Theory, constitute a crime, criminal law is reflected harmfulness (invasive and legal interests shall be liable for sex (the responsibility of objective and subjective components of the organic whole.
Two kinds of theories constitute common features: both emphasize crime constitutes a legal nature, both subjective and objective elements that constitute a crime is a unified whole, this was mainly due to two kinds of crime constitutes a theory of the origin and history of the same crime constitutes a concept from 16th century Italian criminal law scholar Fali Qiu, and later, the German criminal law experts Klein be translated as "crime constitutes a", however, constitute a crime at this time still belongs to the concept of procedural law on until Feuerbach from Crime and Punishment legal principle, the criminal law on the establishment of conditions called on crime constitute a crime, in fact, the body was given to the significance of law in the German criminal law theory under the influence of the former Soviet Union in the second half of the 19th century began studies constitute a crime , forming a theory of four elements constitute a crime, and in the 1950s, was accepted by scholars of the Criminal Law.
Second, the two theories constitute a crime under the structure
Generally, four elements constitute a crime of the logical structure of a planar coupling characteristics, parallel to each other by the four elements, namely, the object of the crime, the criminal objective aspect, the subject of crime and crime subjective. Criminal object, refers to the protection of the criminal law as an offense against the social relations, can become the object of a crime on the elements of the crime but also the criminal law more controversial issues, objective aspect of crime is the subjective into the objective of the criminal objective external performance, usually by harmful behavior , harmful results, causality and other elements of composition, the subject of crime, refers to the implementation of the act that endangers society, and according to the law should be held criminally liable entity or individual, as a criminal offense subject must have the ability, subjective aspect of crime, is the subject of a crime against implement their own behavior and its consequences mental attitude held by this "four elements" between the logical relationship is not around, as long as the same time with a crime, a crime constitutes an active element, the lack of any one element can not constitute a crime, while As a "shape guilty, in fact, innocent," the self-defense and emergency hedge such exclusion constituted a crime is a crime subject of a supplement, becoming established negates criminal grounds.
Three classes constitute a crime is to take the form of logical reasoning progressive by nature deserve (compliance, illegality and accountability three elements are composed of various elements of rank between the relationship with a clear, logical, become a kind of three-dimensional Criminology System. deserve sex (compliance, refers to the realization of the constituent elements, namely the fact that what happened with the provisions stipulated in the Criminal Code is consistent Elements. Elements deserving of judgment, the fact that the relationship is a value judgment, is an abstract, stereotyped judgment, including the subject of crime, criminal behavior, results, causality and other factors. illegal, is in violation of the law, that is not permitted by law. judgment on illicit sex is a specific , non-stereotypical value judgments, study mainly the illegal substance and illegal negates There accountability, is able to meet the constituent elements of the offense against the perpetrator for censure, reprimand, censure that possibility, including the ability of responsibility , form of liability and other major content.
Although the two kinds of criminal elements constituting the framework of different logic structure is different, however, in the form of crime on the considerations that have corresponding elements, namely body, behavior, results, accountability capabilities, intentional and negligent corresponding elements such as shown below :
Third, the two kinds of crime constitutes a crime of access mechanism theory
Four elements constitute a crime theory system of incriminating Mechanism more perfect, provided that they meet the four coupling elements constitutes an offense, but for the sins Mechanism is not perfect. Some scholars believe that four elements that constitute a crime preconceived the defendant is guilty, then the defendant guilty under the premise of the criminal acts of reasoning, and contrary to the principle of presumption of innocence, although the Penal Code provides for self-defense, such as emergency hedge negates criminal grounds, but negates the subject of crime Not one of the constituent elements of crime, not the four elements within the logical structure, but the four elements constitute a crime supplement. crime constitutes a crime and negates the subject of such a crime or relationships, making four elements constitute a crime re-incrimination The light of sin.
In contrast, the three levels of crime constitutes a crime of the theoretical system of access mechanisms are more perfect in Elements deserve on the basis of sex, illegal sex is a crime of value judgments, such as self-defense and emergency hedge negates the subject of a criminal offense of the main content of the three levels of crime constitutes a form of progressive reasoning makes deserve sex, illegal and have accountability between the various constituent elements with a clear relationship between rank, and so logic of the process is to identify crime the process of the crime, making the crime and criminal conviction became identified organic whole.
Fourth, the two kinds of crime constitutes a theoretical evaluation
The four elements of our constitution of crimes is planar coupling structure, each parallel to each other and the elements of the crime does not exist between each rank, as long as four elements along with a crime. Crime identified in the process of this system as a precondition to the presumption of guilt Therefore, restrictions on the right of punishment, protection of human rights, reflecting some unsatisfactory aspects of procedural justice, but four elements constitute a crime system fully reflects the social harm the essential characteristics of the crime, the crime can be a one-time evaluation, avoid duplication of assessment. Nevertheless, in the same plane for evaluation of facts and values the fact that there will be heavy and light value evaluation judgment tendency while the exclusion of the subject matter of crime, whether it should contain elements of the crime object of a crime and there are also other aspects controversy.
Constitute a crime in the three sectors of the system, crime is constituted with specific requirements, and are responsible for the illegal behavior, so the status of the constituent elements constitute a crime in less than four elements position, its just part of one of the crimes identified in the three levels of crime constitute a system, the "act" is the evaluation of the object, and the constituent elements of the "deserving of, and are responsible for the illegal sex" is "conduct" element of evaluation indicators. "three class" theory of crime dimensional progressive logic between the various constituent elements structure makes a clear relationship between the rank, the layers forward, clear logic. Meanwhile, the process of this system is to identify criminal offense of the process, it is beneficial for restricting the right penalty. deserve constitutional elements of the Penal Code makes it predictable, self-defense and emergency hedge negates the subject and substance of such crimes as illegal sexual theory, the emphasis on criminal procedural justice and human rights protection function. three levels of crime constitutes a system has the above advantages, while its defects is mainly manifested in the absence of the subjective and objective elements are united in the constituent elements of the scholars point out, three-level evaluation of not only the elements constitute a crime occurred unnecessary duplication of evaluation, but also makes the relationship between the three elements is difficult in theory with the intrinsic link made certain interpretation, the distinction between the various elements of the increasingly blurred. theory from three levels of historical conditions and development perspective, the theoretical system more emphasis abstract and formal, and thus slightly less than on solving practical problems. Along with social the development of the inherent limitations of conventional thinking makes the constituent elements can not adapt to the era of human behavior specifications.