China's Criminal Law of the extra-territorial crime, constitutes a reference for selection and development of_1030

By Samuel Bell,2014-10-30 12:19
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China's Criminal Law of the extra-territorial crime, constitutes a reference for selection and development of_1030

China's Criminal Law of the extra-territorial crime,

    constitutes a reference for selection and development of

     Abstract Former Soviet Union "4 Elements" type of crime, constitutes a model introduction to the Chinese criminal law theory and practice of criminal law is a big

    negative impact. After the reform and opening up, Chinese people have learned of the crime constitutes a model of civil law is not in form and content is perfect. Posed in the introduction of the civil law mode of criminal law should be beneficial as a theoretical

    foundation, and should accept the individual-based values. Chinese law scholars can

    learn from and absorb the extra-territorial in the related theories, based on the

    formation of his own theoretical system that constitute a crime and crime constitute a

    specification model.

     Key words constitute a crime, the judicial practice of drawing on the development of criminal law theory

     Borrowing and Developing Choice: Chinese Criminal Law and Overseas Criminal Elements

     Constitute a crime in the current Criminal Law of China has once again become a hot topic in academic circles, the entire Chinese criminal law scholars, I wonder if part of a blessing or a misfortune? Perhaps this is one of the Chinese Criminal Law must be

    crossed "Karfding Canyon." [1] However, the Chinese Criminal Law is sometimes the total always seemed to grow up children, from time to time, some issues have to start from scratch again. If you repeat the mere presence of the field of teaching in law and

    belong to a blessing of course, can not be avoided, but when it always appears in the legal field of study, it is not the blessing of the. Chinese Criminal Law-related crime

    constitutes a discussion of this phenomenon at least show that China's criminal law

    here, "lost" the. Phoenix Nirvana and then recycled, I hope that the Chinese Criminal Law late wake up to reality and glory.

     First, the Chinese Criminal Law of the former Soviet-style crime posed by inherited,

    reference and criticism

     The establishment of the PRC government in 1949, so that China has entered a new historical stage. At that time, the Party and state leaders adopted a "one-sided"

    political choice, making the whole of China from forming a "path dependent" development tendency, for the time to learn and follow the example of the former Soviet Union, in the political economy, whether, under the overall control of and cultural fields, or light rail vehicles are the way Poets, China's criminal law course, not immune to this independent outward. As a result, constitutes a crime that relates to the basic theory of criminal law on the issue of Chinese criminal law naturally chose the former Soviet Union constitutes a pattern of crime as a basis for its survival and development mode. This is the current Criminal Law of China, and numerous scholars have even entered the field of criminal law students who are familiar with the "four elements of style" crimes constitute a pattern.

     Constitutional scholar Cai Jian will recall this period in history, said: "In 1950, the

    formal undergraduate legal education started. Create a new legal education system, the basic conclusion: the legal foundation of China Law of the science book, the bourgeois parliamentary politics has been completely useless, and Old legal education, with the

    abolition of the old legal system, lost the meaning of the continued existence must be replaced by a new educational content. Therefore, after the liberation, reform, political and legal education content that is to become a major event. the old political and legal

    education content can not be used, but it is nothing can use to learn from the Soviet Union is the only way. "[2] In fact, the law in the field of" asymmetrical "is not just limited to legal education, legal research throughout the study areas, especially in the field of criminal law, so, too? So the former Soviet Union the "Four Elements of style" constitutes a pattern of crime was introduced to China. Although China is a lot of things happened at the time of cause and effect relationship is not complete, if the

    scholars said, even though China after the abolition of the old legal system has not yet started to develop its own criminal law, but that does not prevent the former Soviet Union-style legal concepts and the former Soviet Union together constitute the theory of crime into China, and dominate for decades.

     Reflect on the former Soviet Union "4 Elements of style" constitutes a pattern of crime on its form, is not the original the former Soviet Union. As early as the Tsar era when

    criminal law scholars, Clerides A Tarkovsky in 1875, "the General Penal Code Primer" on the proposed composition of four elements of the crime, namely: "a crime or criminal to implement the main body of persons; 2 , object or crime on the increase

    of its object; three of the main criminal acts against the will of the attitude or the performance of its activities; 4, the act itself and its results or principal outside activities and their results. "[3 ] Although the tsarist criminal legislation and criminal

    law theory is essentially a civil law type, although the study also posed for the crime, then Germany has done far less in-depth and meticulous, but some Russian scholars

    also paid great attention. Clerides A Minkowski proposed "four elements" type of

    crime, constitutes a model, has been shown to have been at that time the basic shape of the German "progressive-type third-order-bit-style" crime constitutes a pattern with

    different manifestations. But one thing must be pointed out that even Clerides A

    Tarkovsky's "four elements" model still follows the "crime constituted, that is, those who formed the concept of crime itself, the external and internal conditions of the sum of the prominent" requirement, [4] constitute the crime of criminal acts as a

    description of the facts and the shape of the record, it does not bear the political needs and values the role of evaluation.

     However, after the victory of October Revolution, the Soviet Union new criminal

legislation and criminal law theory to political domination of non-normal phenomenon

    more obvious, so that when the young Soviet criminal law scholars in the new political ideology of domination under the constitution of crime to take over tsarist mode, which quickly carried out a bold and comprehensive reform, that is to constitute the crime belonged to the facts of record (including the behavior of facts and psychological facts) model began to join the political assessment of the needs and the value of the content, which is mainly reflected in the object of a crime carried out surgical transformation of the original object of a crime would be divided into two, originally belonging to "object or crime on the increase of its object" the contents of the object classified as crimes against the rest of the object shape is made a crime "internal organs" of the transplant, which is given a new content object of the offense, namely, the so-called criminal object

    is for the protection of the criminal law for criminal acts which violate the socialist

    social relations. [5] make it a political necessity and value of the evaluation of the carrier. Constitute a pattern of such crimes to fully embodies the "value in the former, norms followed by" of approaches. This transformation of the Soviet Union at that

    time commander of all political circumstances, through the criminal object of this is full of political overtones and can be free to change the contents of the "terms", so that this constitutes a pattern of crime "before the rule of law" era that can be obtained

    incisively and vividly show the role of an era. With the criminal object of value to the role of evaluation in this elastic props, overriding the rule of law in the political era, has the right to speak person can object to the assessment of any of moderation, but

    especially to facilitate its control. So for a long period of time, constitute such a crime became the Soviet Union's judicial practice and judicial staff to go beyond the law and trample on the rule of law in theory support. Of course, the former Soviet Union have

    experienced the "big clean era" of the criminal law is a bloody, and its deeper reason is that "political", but it contains a non-normative "theory of criminal object," no doubt

    played a fueling effect. For this crime, constitutes a model, due to reasons known to all,

    was intact into China, and have been inherited with the digestion of China's criminal law theory and judicial practice delight in talking about ready-made model, although it

    was once in the "Cultural Revolution" has suffered misfortune.

     How to evaluate China's introduction of the former Soviet Union the "Four Elements" type of crime, constitutes a pattern of Chinese criminal law theory and practice, the impact of the Criminal Code, it is difficult to say. After an interruption of transmission

    of traditional Chinese concepts of criminal law, and abolished the traditional text of the Penal Code also after the introduction of a model of the former Soviet Union, at least in criminal law theory had a long it can sustain the basis of practice of criminal justice at

    that time. However, the negative impact it is very obvious. Here I far as technology application, system design, ideas, and in this rigid mode of academic research, study, to analyze the formation of the "four elements of style" crime posed model has the

    shortcomings to China's Criminal Law and Its Practice and theory of criminal law by the negative impact.

     First, the use of criminal law in terms of technology, due to the "Four Elements" type of crime, constitutes a parallel progress in the mix style, even though some criminal law scholars have recently tried to mix elements of its composition in different forms to rearrange the order of and assembly, but its effects are nothing but a similar building

    block to play the game, there is no new theoretical value and practical significance. And when we see too much involved in the "Four Elements" type of crime, constitutes a model, many scholars do not seem to understand that they are standing on the perspective of criminal legislation to develop the canonical form constitutes a crime, or whether the criminal justice perspective with which to and use of criminal conviction constitutes a pattern, so that frequent the perspective of language transfer. Here we

    examine the judicial practice as a perspective on the current "four elements of style" constitutes a pattern of crime, the criminal object bear the brunt of the value of the first evaluation of the commission of crimes and the nature of the object found,

    however, constitute a pattern in which the act was the fact that not yet fixed, the psychological fact that is not yet known how the value of evaluation? The facts that

    constitute the act of crime is documented and described, but the "four elements of style" in the criminal object is a product of the value of evaluation, while the act does not reflect the fact that the subjective element which is sometimes derived product. Therefore, in a specific practical application in full of contradictions and inconsistencies, leading to political supremacy and legal nihilism phenomenon. This is because the theory through the object can be arbitrary interpretation of behavior, with the object of this crime, the value of flexibility in evaluation of props, have a right to

    speak of the person can object to the assessment of any of moderation, rigid standards of the law is not easily give way to a set number of authoritarian rule of man, beyond the law to become a long-term fashion, creating the phenomenon of political tyranny,

    the law become the handmaiden of politics. Can be said that the criminal object level of theory in the judicial practice is a reaction to the rule of law. Beijing has occurred in soccer referee bribery case have taken place in the Rose Bar in Nanjing homosexual

    prostitution case in Shanghai have taken place in an envelope with bread crumbs are all waiting for the final posting of the case of the criminalization of those whose crimes are the object of theory has played a catalytic role.

     At the same time constitutes a model in this crime, crime and crime of the main elements of the subjective element has overlap. Crime must be clear that the main original actors possess the qualifications required to commit the crime, such qualifications include the ability of the age of criminal responsibility and criminal

    liability for both age of criminal responsibility is an objective reality exist, and criminal responsibility is a person's subjective state of mind. 1 person has recognized the nature of their actions, behavior and behavioral significance of results, and whether, if the ability to control is actually the perpetrator in the implementation of certain actions with a subjective state of mind. So when a person's main qualification to be determined later, the perpetrator has the content of what kind of sin, it is judicial practice for evidence-based material made an assumption. The status of subject of crime and the perpetrator or not to commit the crime are not necessarily linked, so the main qualification of crime should not be there in the fact that the composition acts as a mode of being. It is the fact that an act constitutes a crime, to be established must be made before the review. Because of this, with the subjective elements of crime after the crime, the qualifications of the main body there is no need exists in the constitution of crime being. With his main qualification of crime, and especially their mental state normal circumstances, the perpetrator acts implemented by the content of mental activity, already contains the contents of a certain sin. Therefore, the overlap between the two cross-cutting is obvious.

     Secondly, in terms of criminal law concepts, the former Soviet Union "4 Elements of style" crime in order to constitute a pattern of crime as the first element of the object, it

    too to strengthen the state-based, social-based ideas. "Four Elements" type of crime,

    constitutes a model of the model itself is closed, but the crime of which the object is a dynamic concept, its content can be changed with the development of social conditions

    in which development and change, but its core has always been unchanged, that is country-based to community-based. A model of what constitutes a crime, the core

    content-based, this is nothing wrong.

     The development of human society history has proved that under the system of centralized state-based, social-based ideas as the guiding ideology of crime constitutes a model of likely damage to the vital interests of the people of society. So, once the criminal law by the state-based, social-based thinking is not the normal control, then

    the rule of law, humanitarian principles and the principles of justice will be abandoned at any time. In this regard, the lessons of the former Soviet Union should be profound. Although we already know that the real reason that led to this phenomenon is not entirely composed of patterns of crime, because in this period even if the "four elements of style" constitutes a pattern of crimes are not being spared, but the principle of the rule of law in a variety of damage activities in order to represent object of the

crime theory, the emphasis of the state-based, community-based thinking of which has

    played a reactionary role in fueling. It is precisely because excessive strengthening the

    state-based, society-based theory of the concept of color readily available, "Big clean era" of the former Soviet Union can be said that criminal law is cruel, and its judicial practice also "bloody." This lesson has to recall it is still very frightening, but China is

    introducing a false and exaggerated expression of this process does not do any liquidation of this phenomenon, so that its negative role of the Chinese criminal law theory and judicial practice of still great.

     Third, the criminal justice system designs, this crime constitutes a model to be

    reflected in a national-based, social-based values, Therefore, in the design of the

    system, regardless of the severity of behavior or not, will always be the state, violation of the community placed in the top of the Penal Code, which truly reflect the kind of conventional crime, sex, multiple acts, in particular contemporary human society universally recognized human right violations should be among the most serious criminal acts, but regularly placed in a later position. Even though we know that, for

    certain crimes are classified, in fact, we do not need it very seriously. Because of the fact that crime as an act, whether placed there, it would not change its manifestations. However, such a system caused by the mind-set sometimes have a strong inertia, which

    is not uncommon judicial practice. Same time, because crime is a value object of reflection, it is difficult to put it as a fact to be reflected in the law. This relates to the contents of the object of a crime, often only through more than the abstract and

    concrete enough to be half-hearted speech, even though the Penal Code provides for the principle of legality, which is sometimes due to the ambiguity of the content object of a crime which greatly reduced.

     In addition, as the "Four Elements of style" constitutes a pattern of criminal behavior as a closed model, it will over-modeling the entire criminal behavior, while the crime

    took place during regular serious or not, the circumstances are bad or not so dynamic

    content out of this composition model, allows such crimes to solve some specific problems constitute often faced with many embarrassing.

     Fourth, the style of study of theoretical research on the criminal law is concerned, the "four elements" type of crime, constitutes a mode of thinking may easily lead to rigidity. From the macro aspects of research, said the object of a crime, when people learned how to maintain a high degree of unity and politics, learned how to both ways, learned to false and exaggerated expressions, in order to cultivate a large number would say that the hollow language of the Criminal Code of people. From the micro level that there are some articles, especially some scholars to join the ranks of the Criminal Code to the new article, in describing the crime, when the object is very excited, in relation to a crime, a violation of what kind of objects are often lengthy, and some articles object on a discussion of crime, which lists a dozen or less the same pattern of expression, lest the omission, but what is the purpose of discussion but let the matter rest. This article or filled with traces of ideological thinking and the hollow words that way, or is the theory of materials piling up senseless, eloquent and unintelligible. Or we can say: "You are so last generation people do not come in? Do you allow this generation of people who do, it does not allow us to do?" I think we should be given to reply: "human development, no progress can not always be is not before the trial can not be always on the wrong track. our generation in the absence of their predecessors under the guidance of the dark, is the social atmosphere at that time under the influence of ideas and technologies only to accept the former Soviet Union-

    style the object of the theory of crime. But today when we have been able to realize that crime has the empty object theory of political content and the performance of false grandiose manner, there is no need to continue to go on trial and error. "

     Marx once said: "secondary disease more difficult to treat than the primary disease, and more harmful to the body." [6] Because of this, "Four Elements" type of crime, constitutes a model for the future was inevitable in China foreshadowed the negative. Peking University Professor Chen Xingliang represented by some of the criminal law scholars in the field of criminal law should be clearly and thoroughly "to the Soviet Union" is the a typical performance. [7]

     Second, China's criminal law constitutes a crime against the civil law interpretation,

    Reference and confused

     Although the shape of the crime constitutes a civil law as early as in the former Soviet Union, but because of China's new government after the establishment of "one-sided"

    policy options, so that our country with the Western world has maintained a

    considerable distance, the new Penal Code early Chinese scholars only know that the former Soviet Union , but I do not know civil law, not to mention Anglo-American legal


     November 9, 1989, with the "Berlin Wall" of the collapse, the entire former Soviet Union and Eastern European socialist countries changed dramatically. Not long ago, followed by the collapse of the Soviet Union, there followed the original of all the former Soviet Union to pursue institutional and practical things that had a profound reflection and criticism, which of course includes the former Soviet Union advocated and pursued by law mode of thought and jurisprudence . With the development of our political process forward, but also with the door open, the Chinese people truly

    understand the value of today's world of crime constitutes a model of diversity and pluralism, but also because of the former Soviet Union "4 Elements of style" crime constituted model there is all kinds of contradictions and shortcomings become more

    prominent, making a lot of criminal law scholars began to look toward the civil law, which constitutes a pattern of criminal learn the civil law is also a unique form of expression, in the content, self-sufficient, self - regulatory function of the theoretical

    system. Of course, as the deepening of the study, China's criminal law scholars learn more about the civil law constitutes a crime, the formation and development of the theoretical system, as well as the composition of the value system.

     The crime constitutes a civil law from the formation of the basic shape, though also gone through a long process of development, but the beginning of the 20th century the basic shape of the. It is a progressive type of the "three elements of style" combination

    model, which constitutes a crime, is satisfied if, illegal and the responsibility of these three elements to be formed. This "Three Elements" type of crime, constitutes a combination of model in today's China, a great field of criminal law to replace the

    former Soviet Union "4 Elements of style" constitutes a pattern of crime trends. We have already seen some of the textbook is arranged according to this model in the theory of crime on the system.

     Perhaps due to the different cultural backgrounds, the civil law constitutes a crime is not entirely as we imagine is a closed model structure, in fact it is a crime, found the process of evaluation methods and evaluation of the combination. Posed model can really play the role of crime is only the element of its deserved. And this constitutes a pattern designed from the outset is the case, and has yet to make major changes. Sri Lanka seeking Bell, published in 1805, "On the offense constitutes a" one wrote: "Crime composition, Naishi who should be sentenced to penalties under the law the sum of all the circumstances, because these facts are the same capacity for duties unrelated." [ 8] Following the rise of Sri Lanka seeking Bell and the classical school of German criminal Feuerbach in 1813 entrusted the drafting of the "Bavarian Penal

    Code," Article 27 specifically provides as follows: "When the offense with the concept of the law belongs to a crime of all the elements, they think it is a crime. "Feuerbach posed by crime, under a special definition:" Crime against the law constitutes a Naishi (from a legal point of view) behavior contained in the implementation of the various acts or various elements of the sum. "[9] In order to Sri Lanka Bell here, like Feuerbach and very definitely believe that being included in the crime constituted only indicative of the character. Of course, as a generation master of criminal law, Feuerbach just can not blame the establishment of the role of the crime, but he will blame on the composition of the crime constitutes a crime, along with the outside is considered guilty basis. Therefore, in order to Bell and Feuerbach Sri Lanka, where the behavioral characteristics that constitute a crime has become the stereotype. Deep behind the theory is based on the classical school of criminal offenses initiated by only the first act should be the objective rather than the perpetrator theory position is that they have with the "despotism" focus on "actors" or "subjective-incrimination," the

    subjective Theory of a complete break thought the democratic ideal.

     Sri Lanka seeking Bell and Feuerbach's idea that constitute a crime constitutes a crime for the whole civil law theory of the formation and development have a significant impact, even today has become the mainstream Behringer's progressive civil law type

    "3 Elements "type of combination mode, we still can see that Sri Lanka Bell and Feuerbach's theory of demand color. Although this theoretical model in the later part of the German criminal law scholars and the same civil law of Japan, the Republic of

    China and China's Taiwan region of China had been some controversy or

    transformation, but in general has been basically finalized. Civil law is actually a crime constitutes a crime, evaluation methods and systems established in the evaluation

    process, including the acts of the facts, reasons for law judge and three progressive process of attribution. Of which deserve an objective constitutes the equivalent of a rough understanding of it could be said to constitute a criminal element, in the conduct

    constituted after the establishment of, and then analyze whether the law of obstructing or does not exist when the law negates circumstances, further analysis of behavior person's mental state, if the perpetrator's mental state is normal, their behavior

    constitutes a crime.

     Would constitute a crime in the civil law understood as a crime, the establishment of evaluation methods and systems of the evaluation process, of which only acts deserve sexual acts constitute a crime an integral part of the contents of the elements constitute a crime, which is well-known contemporary German criminal law scholars Kelaosiluo

    Corzine's "remarks the German Criminal Law" (Volume 1), has also been fully reflected. Roxin first introduced Behringer criminal composition (constituted) has two

    basic characteristics: the objectivity and worthless nature. Objectivity means that all subjective, internal psychological processes are excluded from the acts of composition; worthless sex should be understood as constituted does not contain a statutory

    assessment, that is consistent with the behavior constitutes illegal sex identified. [10] but "constitutes a theory of objectivity was soon shaken." Because "in many cases, not just guilt, but also constitute the wrongfulness of the conduct, depends on the will of the perpetrator point, - that is, depends on the subjective, inner psychological factor." [11] that the act constitutes a theory of subjectivity has been proposed. From the subjective characteristics of the acts constitute acts constitute intentional conduct constitutes the subjectivity provides a great impetus. "Subjective constitutes had accepted the understanding that the conduct constitutes a willful act subjectivity of some of them have to add into the act constitutes in itself." [12] However, the inherent subjective nature of how to understand the psychological factors can only be determined by an objective behavior, and if the need for an objective evaluation of behavior, it's also depends on the unlawful act element of existence. So as a whole, constitute a systematic pattern of crime to the civil law has emerged.

     In fact, when we draw heavily on the civil law constitutes a crime, when I always

thought that today, either civil law or constitute a crime in the former Soviet Union, as

    a model and found that crime in terms of crime, the technology has already begun drawing closer. Along with raising the level of human knowledge, crime as an act of psychological facts and the fact that a high degree of integration has gained the

    consensus of mankind, has ceased to exist many differences. Look in detail at the essential difference between the two, I believe that is no longer technology, but rather the concept. When it comes to crime, constitutes a theoretical system, how to explain

    and understand the values behind the advanced nature of much importance to its technical nature itself. In the former Soviet Union constitutes a crime, the criminal object of discussion in the chatterbox, in the civil law not criminal law theory, that is

    not covered by civil law to protect the interests of the criminal law known as the Law of benefits, but the civil law, and not as an element into the The system constitutes a crime, elaborate and expand, but rather to establish it as a crime constitutes a crime,

    constitutes a canonical form and apply the evaluation model's guiding ideology, as a high-living crime, constitutes a kind of above the guiding values, while the The values of the end-result and the former Soviet Union crime theory of the end-result object is

    different. Here have to talk about the civil law where a long-lasting benefit of law


     The formulation of any one criminal law for the protection of the ruler or the majority of the members of the community recognized the social benefits, which is the same as past and present, and geography. Any action such as a ruler, or if the majority of the members of the community recognized the infringement upon the interests of society and damage to, such acts will be labeled with a label of social harm, and thus has been identified as a crime, which is similar to ancient and modern . Constitutes a crime in this crime, but the concept of a technology dominated by the use of models only, we can not estimate its value too high. With Marx once said, "people in their reality, it is the sum of social relations", that is, we can also say that France is a beneficial social relations and social interests combined. Violation of an act and damage in the end what the legal interest, as the value of evaluation of the product depends on evaluation of what the person standing position, what kind of values to judge. This is a big problem, and therefore legal interest to the civil law where the value is a fundamental concept of

    a big problem. However, the French civil law benefit, the problem is not the former Soviet-style crime, the source of the composition of the object, or the composition of the former Soviet Union crime, civil law is to benefit the object of a replica of the object of

    the former Soviet Union crime is a "re-assemble kitchen" the product of . Therefore

    can not simply combine the two. Today, we see some of the textbooks is simply the object of crime and replacing them with a legal interest about the practice, which in

    fact is a simple practice of a superficial change.

     The term benefit should come from France, Germany. Criminal Law as a

    representative of civil law, German criminal law theory on the concept of legal interests, mainly from the perspective of constitutional government and rule of law

    made by the country, and it is the rule of law targets linked to the country. "Penalty only allows protection of 'legal interests', ... ... criminal law should protect only the predetermined set of 'interest'." [13] "a criminal policy on the concept of binding legal

    interest can only arise in our set forth in the Basic Law based on individual freedom above the rule of law mission. ... ... Law and their benefits in a free development as the goal for construction of the community as a whole system, within the scope of benefits for individuals and their free development, or for the benefit of the system itself or the function of a realistic goal-setting. " [14] Law on the protection of benefits as the object of criminal law is essentially Elements of the legal basis for the protection of the interests or values. [15] However, as proposed by France the civil law concept of benefit "from the Constitution to guide out." [16] This legal interest theory emphasizes the individual interests, individual-based values as the most important of this, this and the

    former Soviet Union "4 Elements of style" crime constitutes a crime in the object theory and the concept of people closely linked to the country, from the state-based,

    social standard as a starting point and ending point and use it as the core of the values

    are completely different. But even so, the civil law theory of law or the recognition of benefits "law the concept of the variability of the benefit." [17] It can be seen, in fact,

    France is nothing but beneficial in evaluating whether an act constitutes a crime, the process should be based on a value concept, not a fact, and therefore can not become a normative content. Reposted elsewhere in the paper for free download http://

     So we posed the introduction of civil-law mode of criminal process, the law must not be

    able to benefit as a constituent elements to be understood and imitation, but rather should be regarded as a theoretical foundation - the individual-based values - to be

    understood and acceptance. In rereading this section constitutes a civil law theory of crime, the process, I sometimes feel that in the past for a long period of history, China is in the process of studying the world's advanced civilization, sometimes not learn the

    main points, the "School for the body, Western learning for the use of "The notion has been dominated so generation after generation of Chinese people, which regularly a" Maiduhaizhu "phenomenon, resulting in not learn the advanced software essence of

    civilized nations. This is in our theory of learning from the West constitute a crime in the process also exist. Liang has long been talked about this in his 1897 "On the Reform I do not know the harm primitive," one article said: "Xi-chih (1856-1875 years) the

    early years of the German phase Bethesda Ma g (ie, German Prime Minister of Bismarck) speaking people say: Thirty years later, Japan, Qi-Xing, China of its weak

    or Down? Japanese Tour of Europe were to discuss their studies, emphasis on

    Bureaucracy, owned by the Bank of; human Tour Europe who asked guns and benefit from a factory ship , a factory value lim, purchase and use it, the strength of the original, which in this peace? 'Alas, in this case though, unfortunately, men, and pedagogical, to remedy the situation, there is the duty of the world who could still be what they are from also. "Liang Rengong this section of reviews for us to read, learn from the civil law theory of crime, equally constitutes a wake-up call effect.

     Of course, constitute a crime in the civil law system has also left us with a lot of confusion, that is due to historical reasons and translation in China, generally the former Soviet Union and China on the system, known as the crime constitutes a crime, the theoretical system, while Germany and Japan of crime on the system, known as the Elements of theoretical system. Civil law in fact constitutes a crime is not just a crime, a model form, which is a behavior includes the facts, law and rules to determine the reasons identified three progressive process of setting up a systematic approach of crime and the evaluation process. "Unlawful acts and behavior of the same crime, the establishment of the invasive nature of the elements and their differences and act against nature is against the legal interests with feelings like, while the illegality is shown against the law to acts of the negative value." [18] If we say that sex is a crime deserve the conduct constituted, there is a collection of the main body responsible for

    qualifications and to the subjective mental state of criminal responsibility for the content of the attribution as one element, then the illegality was established as a crime, a elements of the kinds of norms seemed a bit far-fetched. What is unlawful, in short,

    refers to the perpetrator in violation of the criminal law prohibitions, so that the social harm that the act has a negative value of the property, thus finds that acts constitute a crime, criminal law provides a basis for . From a theoretical point of view, the concept

    of criminal law is a crime of sexual need, it can be said to be the most essential features of a crime where no crime is certainly a violation of criminal law and thus have the attributes of a criminal offense. But the illegal act in itself is not a fact, but rather the

    nature of an act. Ono of Japan Seiichiro Criminal Law scholar has pointed out: "To respect that they (referring to the law and moral responsibility) and the relationship between the Elements of a brief account of my point of view, then it can be said that law

    and moral obligation to belong to ethics, normative judgments. "[19] deserve whether the unlawful sexual conduct characteristics, primarily through the legal evaluation and conclusions. German criminal law scholars, Welzel said: "If the behavior meets the

    conditions that constitute deserve the subject of sex and no offense negates, behavior that is able to identify illegal." [20] As for the criminal law as a prohibition laws, the crime as a violation of Penal Code The prohibition is universal, with criminal cases only

    negates the exception. Despite the existence of unlawful sexual norms among the content, but the fact that it is not an element, but mainly an evaluation (including the value of normative evaluation and evaluation) product from this sense that the crime

    constitutes a structure, there is a law the elements of nature, becomes redundant. Of course, this element constitutes a crime in the civil law appeared, from the understanding of the formation of the civil law constitutes a crime of view is not

    accidental, it can remind the evaluator always remember the legality of this noble country the rule of law requirements, but also can be said The same values have played a role in the prompt. However, precisely because both are subject to the normative

    content of the unlawfulness of the values of another subject, so there is a correct political ideas and political environment for the crime, the use of composition is essential. Because in Germany and Japan during the reign of militarism, civil law

    constitutes a crime have to serve the political needs of the time. Such as Germany appeared to Suffolk Stein (schaffstein) written by a "political criminal law" as advocated by the representative of political superiority of the Nazi system of criminal

    law theory, put forward the punishment of the perpetrator no longer limited to the Penal Code expressly provides, but according to the basic concepts of criminal law and the normal feelings of nationals to be disposed of principle and put forward the concept

    of Potential Damage.In the period of Japanese militarism, Seiichiro Ono worked in "a moral criminal law and policy", "Japan launched legal consciousness," "Greater East Asian legal order the fundamental building" and so on had trumpets on the

    nationalism, militarism, King's Road concept. So there is no correct political ideas and political environment, even if the progressive type of the "three elements of style" composition model remains can not be properly utilized. Therefore, the element of an

    offense constitutes a pattern of crime are placed, there is confusion and behavior behavior value the fact that too.

     Third, China constitutes a crime, the development of path selection and positioning thinking

     Chinese Criminal Law In the present theory also constitute a crime in the former Soviet Union, migration was mainly introduced, basically a replica of the former Soviet Union model, in particular the1958Translated and published in China of the former Soviet Union's famous scientist Criminal LawA*H* Trainin's "general theory of crime constituted" a book, but also scholars of China's criminal law-related crime constitutes

    the establishment and development of the theory had a profound impact of crime in our country still has a special theory of constitution's theory of stigma. The crime constitutes a theory, abandoned the previous behavior of the bourgeoisie, by act or divorced from the objective and subjective human-centered system of criminal

    malpractice constituted to constitute a crime, as the unity of subjective and objective, which has a certain progressive. While this criminal conviction constitutes a theory in solving problems already contains a lot of substance, in a sense has begun to play the role of a conviction and model specifications. However, this crime constitutes a crime, the theory is based on the concept in order to demonstrate responsibility acts harmful to society, so that crime constitutes a subordinate to a political concept and appendages of the concept of crime, which is nothing but reveal the characteristics of the criminal nature of the concept of crime of the concrete. At the same time, due to the existence of this crime, constitutes a system of machinery rigid defects such as, in many issues, and draw Zuiyufeizui not clear and specific limits, so that this crime constitutes a theory, faces the fate of being re-select. Thus it was suggested that complete "to the Soviet-

    oriented" point of view, it was suggested that "Back to Tagantsev to go" slogan, it was

    suggested should be "completely follow the civil law elements of the crime constitutes a theory" is, of course, it was suggested that the former Soviet Union the set of There's nothing wrong, we should not panic, stick to the original theoretical position. Point of

    view of this there are numerous and so forth. China's theory of what constitutes a crime go? This is something no one attaches great importance to the development of China's Criminal Law scholars should not evade this problem. However, among these

    numerous programs, but people see, hear and be able to feel a sadness, that is, for the

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