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On the existence of criminal elements of the necessity of the object_400

By Leroy Crawford,2014-11-25 11:44
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On the existence of criminal elements of the necessity of the object_400

    On the existence of criminal elements of the necessity of the object

     - On the Essentiality of the Object of Crime

     Summary The basic principles of Marxism-Leninism under

    the guidance of a scientific world outlook and methodology,

    based on depth the concept of criminal object, nature. Through a variety of contrast and comparison between theory, understanding, and proved that constitute the object of the crime as one of the elements of the indispensability.

     Key words that constitute a crime; constituent elements; criminal object

     Abstract Guided by the principles of Marxism and

    Leninism, studied deeply on the basis of scientific world-view

    and methodology are the general ideas and essence and appearance and the relationship between them of the object of

    crime. Through compare between doctrines and theories about it, the object of crime is essential as one of elements of constitution of crime.

     Key Words the constitution of crime; the essential elements of constitution of crime; the object of crime

     First, the meaning of the elements of criminal object

     Some scholars believe that "criminal object is protected by China's Criminal Law for criminal acts against the social relations"; [1] (P94) There are scholars believe that

    "criminal elements of that object under the Criminal Code, acts as crimes to be violated and the legitimate rights and interests have been violated. "[2] (P116)" or a breach of an obligation. " In summary, scholars have interpreted as, respectively, the object of criminal acts violated the "social

    relations" and "rights" and "breach of its obligations." Can be in my opinion, these three this was actually the same kind of thing. Marx said: "I feel for things and a relationship with the objects, but the material itself is of its own and an

    object of human nature, human relationships; in turn, is true." "Only when things happen according to people the way colleagues relationship, I was able to practice according to people the way a relationship with the objects. "[3] (P124)

    that is, whether criminal acts have infringed upon is the objective reality of the" rights "or corresponding" breach of an obligation ", which essentially said that criminal acts are a violation of the associated social relations. The "rights"

    and "obligations" of the wording, but in order to "rights-

    based" or "duty-based" perspective described with the

    corresponding social relations. For example, an act infringed the all (material) rights (benefits), or that a violation of "respect for others ownership" is not as obligations, while the nature of this act a violation of law recognized by the society (in rem) relationship.

     That being the case, I believe that "object" This concept should be formally defined as "conduct protected by the Criminal Code violated by the social relations." Because it can be more fully clarify the nature and characteristics of criminal acts, to avoid using only "rights violation to say" or "breach of the obligation to say" less than one-sidedness.

     Second, with regard to the composition of the object element in the crime, the positioning of the dispute and Analysis

     With regard to the composition of the object element in the crime, the positioning, and some scholars believe that the object element should constitute the necessary conditions for

    crime, "the object will be excluded from the crime constitutes a crime beyond the crime, the object included in the crime, the objective element in the crime constitutes a cancellation Elements of crime, the views of the object ... ... I believe

    that his arguments lack of perspective. "[4] (P26)

     While some scholars believe that constitutes a crime, does not exist in the so-called "criminal elements of the object." "Crime has been the object itself is violation of social relations, but to determine whether a particular act is a violation of social relations, as well as a violation of what

    kind of social relations, and the object of the crime itself can not be resolved, through an objective element of crime, the main elements and subjective Elements of a comprehensive reflected. In other words, actions are consistent with the objective elements of the crime, the main elements and subjective elements, not only indicative of a violation of certain social relations, but also indicative of a violation

    of what kind of social relations. "[5] (P134)" can not be to be clearly explained the phenomenon - the phenomenon of crime

    and description of the object of the criminal objective element, the main elements and subjective elements tied

    together constitute an element of a criminal. and a criminal act a violation of what kind of social relations, it is an objective by criminal elements, the main elements and subjective elements of a comprehensive decision, crime, crime, the nature of the object can not be determined to distinguish between this crime and the crime of Peter, on the subjective and objective aspect is the analysis of crime patterns. "In short," no theory "point of view, the nature of crime is the that are violations of the criminal law to protect the social

    relations, and therefore the significance of the object of crime has long been included in the concept of crime among the three elements with the other side by side does not have the same nature; and, behavior of the main element, the subjective

    and objective element element can be a comprehensive reflection of the common act of violation of social relations and what kind of social relations, thereby negating the object of the Elements Elements of a crime, one of the raison d'etre.

    Reposted elsewhere in the paper for free download http://

     Then, the object element in the end is a "crime, constitutes a necessary condition" mean? I think so, and must be. The following reasons:

     In the social phenomenon of crime into legal phenomena in the

    process of crime, the nature and characteristics of the object by criminal elements, the objective element, the main elements and subjective elements of a common reflection, while the object element is one of the most direct expression. As

    mentioned above, constitute the elements between the "save a deposit Ju, Ju lost a loss," the characteristics, in short, elements of crime, the establishment of the object is to assume that after the establishment of three other elements, only whether to make value judgments significance. In other

    words, the main elements of crime, the subjective and objective elements of the object element is a crime element and a prerequisite for judging the value of the premise, they are as an organic unity to embody the essence of crime. The

    main elements of crime, the subjective and objective elements and criminal elements that exist between the object tight cut ties, as described in this article ( "the relevant concepts that constitute a crime and related issues Analysis of

    History," stated in the content), the first three elements can indirectly expression and reflection of the object of the criminal element I want to clarify one aspect of its behavior corresponds to the content and features. Conversely, just because of this close contact between them, that is, as some scholars have said, act in accordance with the "criminal objective element, the main elements and subjective elements, not only indicative of the violation of certain social relations, but also indicative of the a violation of what kind

    of social relations, "[5] (P134) are thus denied the independent existence of elements of the necessity of the object. This has made a methodological sense of the word "metaphysical" error. In addition, as will be excluded from

    the object of a crime constitutes a crime, outside "because the object of a crime is a crime the nature of the prompt, which is the concept of crime to be studied content, constitutes a crime, is to specify the nature of crime, in other words the object of crime, , can not be clearly

    explained that the object of the crime and description of the object off of this crime, in parallel with the other elements, as a crime, constitutes a content ", [5] (P24-26) So, this

    view is completely confused the nature of object of the crime

    and crime relationship. Is the essence of crime "should be held criminally responsible degree of social harm." As a social phenomenon, crime has "behavior causing serious harm to the social impact" of "criminal illegal sex" and "should be

    subject to penalties for sex." As a legal phenomenon, by the constituent elements of crime to focus reflects the nature of crime, with three characteristics. Among them, object of a crime - violation of criminal conduct protected by the criminal law of social relations, the most direct expression of "serious harm caused by acts of social impact" characteristics and the fact that "behavior should be held criminally responsible degree of social harm" was the nature of property crime. Therefore, the object element, as one of

    the constituent elements, and the nature and characteristics

    of crime (which belongs to the concept of crime categories) is a reflection of and being between the embodied relationship. But can not say that the object element itself is part of the

    concept of crime categories. In summary, from the object with the other three elements of crime premise of the relationship between each other and with the criminal nature of the relationship between performance and the performance can be drawn are: crime not by the performance of the contents of the object, but rather the performance of the criminal nature of acts of social harm that is the basic facts (but not all, crime is the essence of all the constituent elements of crime shown). Thus, in evaluating the "act Zuiyufeizui", the object of the criminal element is an indispensable necessity.

     Furthermore, the object of a direct expression of the elements in the Penal Code article 13 of the Penal Code provides for the content. It can be seen, the object describes

    the violations of the elements of social relations, and specifically what kind of social relations, the key is more important is that this social relationship must be attained before their violations should be investigated for criminal

    responsibility level of social relations, that is, Tong said, in the definition of "criminal law protect" the social relations. This is the object location as a crime, constitutes a key element. Even if the actors element, the objective elements and subjective elements described are violations of social relations and specific what kind of social relations, criminal elements are also the object is still a need - for

    such social relations legal "investigation" effect.

     Here are two examples shows the object to be elements of

    legal "investigation" effect. Cases of one, on "speculation" behavior, why the same behavior in the old Penal Code after the change, do not think that is a crime it? "According to the dialectical materialist theory of knowledge, subjective

    reflection of objective, but subjective and objective knowledge is limited. Just because there is no subjective awareness of the objective is not to determine the nature of things, is a mistaken view of idealism. A behavioral phenomenon as a threat to the relationship between the current rule, which has the nature of the crime, but because the law as a subjective will not be criminalized, thus negating its objective existence of the criminal nature, as the Anglo-

    American criminal law scholars have pointed out that the

    perpetrators of these offenses are of a process, an act of crime in its entry into force of the law attached to it by nature of the crime, while denying the entry into force of the law before the criminal nature of the act, which is incompatible with dialectical materialism. "From this, "speculation" behavior itself, in essence, has not changed, and the actors alone, behavioral subjective, behavioral and objective aspects have not changed, but why is it legal evaluation took place in the Penal Code amendments to the

    Penal Code before and after the meaning of "quality" changes it? These are because the law no longer considers such an act is "offended" as a kind of social relationship with a criminal violation degree of social relations, that is, the elements of

    legal evaluation object has changed, and further said that it was "whether the conduct of a crime "judgment process, the community impact of serious harm and criminal law of the" investigation "of the missing foot. Therefore, the behavior of

    the main element in meeting the subjective and objective elements of the elements, you must also bound to make a "object element" of the evaluation of whether or not the conviction to get the final conclusion. If as some scholars put it, the other three elements alone speaks for acts

    violating the social relations and what kind of social relations - the object elements that do not exist, then in such cases, it leads to contradictions , even this "negative said," entered a blind alley and can not be justified.

     Two cases of the perpetrator through the explosion, poisoning, water in a manner never to kill. In accordance with "no say", by actors element, the subjective element and the objective element in explaining "what happened constituted a violation of social relations, or what kind of social relationship" to judge, there have been "artificial" ambiguity and controversy, that is, The perpetrator in the end a violation of what kind of social relations, or that a violation of the number of social relationships, eventually

    resulting in the conviction on the difficulties. In fact, this is criminal behavior illustrates the process to determine the missing elements of the result of the object. Because the object elements can not only through legal means that the act

    violated clear what kind of social relations, a few more questions in sin to make the violations of social relations in the "quantity" of the statutory assessment of those involved. On the above-mentioned "two cases", the act only if the face

    of the performance of a violation of the right to life of social relations, but also a violation of the performance of public security, social relations; at this time in the fundamental act of infringement is a kind of social relations -- - in which individuals the right to life on the basis of

    social relations and expand to include most of the right to life is not a specific social relations level. In this way, we can come to: in the other three elements to meet, based on the object element through the satisfaction of behavior can be set

    accordingly the type of crime of endangering public safety. It can be said that in this type of crime, the object element in the conviction of the role of research, can be more accurate, more timely, such as the above-mentioned elimination of the

    "pseudo-controversy," thus reinforcing the crime constituted a clear conviction and sentencing of the role to be more can embody the spirit of the principles and values of legality in order to prevent such crimes by analogy reflects the principle

    of legality and other non-judicial errors. In addition, the

    existence of the object element, whether the crime constitutes the structure of their own, or in the Criminal Code legislation, macro-structure, embodies its own independent

    existence of the legitimacy and necessity.

     To sum up, I first clarify the nature of crime and crime elements of the relationship between the object, in the

    connotation and extension of the distinction on the basis of further explanation and should permit a criminal element in the conviction and sentencing of objects indispensable to role - even if the main elements of criminal acts to meet the subjective and objective elements of elements of these three elements can not replace a comprehensive evaluation of the role of criminal elements and significance of the object. Fundamentally, the negation of the "negative" theory that the criminal object is, and must be one of the elements that

    constitute a crime.

     Notes

     [1] Gao, Ke-Chang Ma. "Criminal Law" [M]. Beijing: Higher Education Press, Beijing University Press, 2000 edition

     [2] Zhang Mingkai. "Criminal Law" (on the) [M]. Beijing: Law

Press, 1997 edition

     [3] "Complete Works of Marx and Engels" (Volume 42) [M]. Beijing: People's Publishing House, 1956 edition [4] Li Jie forward. "Criminal focus group study" [M]. Beijing: China University of Political Science Press, 1998 edition

     [5] Zhang Mingkai. "Crime on the principle of" [M]. Wuhan: Wuhan University Press, 1991 edition reposted elsewhere in the paper for free download http://

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