From the principle of unity of subjective and objective look at "the amount of committed" Identification_3228

By Gerald Diaz,2014-10-30 18:16
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From the principle of unity of subjective and objective look at "the amount of committed" Identification_3228

    From the principle of unity of subjective and objective look at "the amount of committed" Identification

     Summary amount committed by the type of criminal law in China is relatively unique phenomenon. As the amount of the elements of its own particularity and the composition of China's Criminal Law crime impact of the internal structure, in the amount found guilty are often easily lead to disputes. In the process of recognition of the amount committed should be based on the premise of the unity of objective and

    subjective offense, the amount of an accurate grasp of reality and the subjective aspects of human behavior, "amount" links. Only when the perpetrator objective to achieve or exceed the amount of violations of the statutory standards for

    conviction, and the subjective to the objective be aware of the amount of violations that have criminal intent when committing the establishment of the amount can only be confirmed.

     Key words the amount of crime committed intentionally

    subjective and objective understanding of the unity of an object error

     [Abstract] The typification of amount offense is a relatively special phenomenon in China's criminal law. Because of the particularity of the amount element itself and its influence on the internal structure of constitution of a crime in the criminal law, determining an amount offense often causes controversy. In the course of determining an amount offense, we shall precisely grasp the connection between the actual amount and the "amount" in the action man's

    subjectivity, on the "Unification of Subjectivity and Objectivity" premise of criminal responsibility. Only if the amount an action man objectively infringes on reaches or exceeds the legal convictive criterion, and he recognizes it

    subjectively (namely he has criminal intent), an amount

offense can be confirmed.

     [Key words] Amount Offense; Unification of Subjectivity and Objectivity; Criminal Intent; Recognition; Error in Target

     I. Introduction: concept and characteristics of the amount of


     The amount of committed, in accordance with criminal law scholars of the pass, said China's criminal law to a certain amount as elements of a crime as a form of crime. [1] and foreign legislative qualitative and quantitative judicial

    criminal legislation patterns are different, our country's criminal legislation model is also the quantitative nature of the legislative established. This feature has been a large number of Chinese criminal law provisions of the amount

    committed to express most vividly. ? 1 due to the amount of

    intentional crime committed mainly in being, in order to facilitate wording of the needs of this paper is limited to the amount of committing a deliberate crime committed without involving the negligence of the amount of the amount of crime committed. Under China's current "Criminal Law" (hereinafter referred to as "Criminal Law"), the amount committed in a wide range exists in the economics of crime and property crime categories, such as the Loan Defraud Crime, theft, crimes

    committed in order to seize large amounts as a constituent one of the elements.

     In China mainland's "Criminal Law", requires the establishment of the amount committed to achieve a certain amount. For the nature of that amount, although there is

    controversy among scholars in criminal law, but the prevailing view of China's criminal law scholars that the amount of the composition of elements of crime, it is a composition of elements of compliance, which is different from common

    components. [2] In China, an act constitutes a crime if the elements available, it shows that the behavior has a serious social harm, criminal law and penalties as punishment sex. Legislators in some crime was particularly emphasized that "amount", mainly because in their view, the amount of

    relatively concentrated reflection of the behavior of the dangers of the degree requirements in line with the amount of

    any act or result of a serious social harm, constitutes the crime. [3]

     Since the amount of the composition of the elements of crime, according to China's four elements constitute a crime, the composition of the coupling-type theory, only in the

    amount of the composition of elements and other elements complete the general case, the amount committed to be set up.

    If the amount of elements missing, even if other common components are in place, does not constitute a crime. In other words, for the amount of committed, even if the behavior of people have against certain social relations, intentional, but

    also objectively implemented violations, but if the amount of the actual object of assault conviction did not meet the statutory amount of the standard, it can not be considered to constitute a crime .

     Second, the amount of crime committed deliberately with the

    unity of the principles of objective and subjective

     Criminal law, criminal intent, according to "criminal" provisions of Article XI refers to the perpetrator know that their behavior will occur the results of a danger to society and hope, or a laissez-faire of such harm results to the

    mental attitude. [4] contains the perpetrator of crime against intentional acts of awareness of factors and will factor in two aspects. Is generally believed that the perpetrator's awareness of factors including the nature of the perpetrator for their own actions, behavior, and behavior and the results of the results of a causal relationship between the knowledge. Understanding of the nature of the behavior of the act also includes the means, methods of objective (natural) properties,

    behavior characteristics and behavior of social attributes of the object that is the awareness of social harm. The perpetrator will factor refers to the perpetrator at the time of the implementation of an intentional crime control state

    must have content. The so-called control state is defined as

    the main crime against criminal acts in the implementation of "hope, or laissez-faire," their actions will cause harm

    results to the activities of the process. [5] In accordance with criminal law theory for the definition of criminal intent, the amount of crime committed intentionally, shall

    knowingly act against their own social behavior the object will reach the statutory amount constitutes a crime, and hope, or a laissez-faire of such hazards as a necessary result of a constitute the elements.

     However, in judicial practice and theory, the course of discussion, there is a controversial question, namely: the perpetrator has intentionally subjective, but it contains the "amount of" content does not meet the standards constitute a crime, but due to various reasons, so that Objectively, the amount of abuse to the legal standards for the establishment of a crime. For such cases, how should qualitative?

     Cite a few cases:

     Case 1: Lee Department of a private antique shop owner. Day, Lee to tens of dollars to buy from the market price of a late well-known landscape painter Chang Dai-chien's

    counterfeit intended Yijiachongzhen a 3 million "low," sold for profit, and has not told his wife Wu. A few days later,

    the customer Song when they go out to shop in the Lee saw the fakes. Song confidence in their own vision, and am sure this is authentic Chang Ta-chien, see Lee do not, they would not

    know the Wu proposed a 12 million bought the painting, all her

    money to go. Wu to believe that the painting is genuine, because seeking advantage mouthful promised, and to Song undertaking not to bring the matter to her husband. Subsequently, Song will be 120,000 yuan into the Wu's private bank accounts, had been aware of Lee's negligence. A few weeks later, Song's wife requested the antiques experts, because of doubts about the identification of this painting found to be false, to a local police station, so being unmasked. Identified by the relevant bodies after the certification, Chang Ta-chien authentic landscape worth 25 million yuan, and this is only the value of counterfeit 180 yuan. Lee is an illegal profit of 11 million yuan, and according to the relevant judicial interpretations in order to profit for the

    purpose of selling pirated products, personal amount of illegal gains of 10 million yuan, in accordance with

    "Criminal," the provisions of article 218, to sell be convicted and punished the crime of infringing copies. ? 2

     Case 2: 10000 A, the text of a line from the field to work part time. Winter 2005, living in shabby temporary shed

    on the construction site of the two because he could not bear the cold weather, to discuss joint decision by the theft of a cotton processing plant in warm cotton blankets two rounds. After repeated check out the location of the factory warehouse, and by the factory staff confirmed that bank has

    kept only a bag of cotton. A few days later early in the morning, Wan, Wen duo slipped into the warehouse by mistake before anyone else on the day of the temporary storage of several bags of rabbit (never before) as to steal a bag of

    cotton each. Return the way, that they were policemen captured. Public Security In order to clarify "Cotton" level in order to determine the value of the stolen goods were forwarded to the identification, rabbit-to-know actually. That

    identified a result, two pale, two are of the original rabbit, normal folk taboo out of things which are related with the rabbit to stay away too far. In terms of cotton pricing, two bags of cotton, a total of 39 Jin total of less than RMB200, less than the amount of the incident to the conviction of

    theft standard 1,000 yuan. If rabbit pricing, two bags of rabbit 39 Jin aggregate value of 1267.5 yuan, has reached the amount of the standard theft conviction.

     Characterization of such cases, often causing great

    controversy. Many scholars and legal practitioners on the subjective aspects of human behavior and its relationship with the fact that the association between the total lack of consideration, but rather to uphold the so-called "amount of

    objective theory", that as long as the object of conduct amounted to the conviction of the statutory amount of the standard , it should be convicted of this act. However, most scholars believe that the establishment of the amount committed to achieve a conviction requires not only the amount

    of the standard, but requires that the perpetrator intentionally included in the contents of the subjective and objective on the amount of the same.

     In our view, whether the act constitutes a crime, can only constitute a crime in theory, follow the principle of

    unity of objective and subjective analysis. [6] the unity of subjective and objective principles, namely, the unity of subjective and objective principles of criminal

    responsibility, its basic meaning is: crime suspects and

    defendants held criminally responsible, we must also have both subjective and objective conditions. Crime of the main

    conditions is fulfilled and who intentionally or negligently in its psychological harm to society dominated by an objective to implement a certain behavior harmful to society, for the protection of criminal law pose a serious threat to social relationships or the reality of the infringement has caused. In the absence of subjective or objective in any one of them in terms of conditions, crime can not be set up so that the

    actors can not be held criminally responsible. [7] because the social harm is the essential feature of a crime, but also socially harmful behavior is implemented by people, people's subjective understanding and the will to dominate the

    behavior. Therefore, the social harm is a subjective and objective aspects of the sins of the mutual acts of unification. Constitute the elements of crime is subjective and objective elements of unity, thus state that the act of social harm, or danger of such a society has reached the extent of punishment should be subject to penalties. The theory of the unity of subjective and objective, is in the criminal history of subjectivism, objectivism, as well as abandoned on the basis of objective and subjective imputable

    to develop. It discarded the subjective meaning of the crime as a crime, the basis for the establishment of the conditions of the argument, but also overcome objectivism too much emphasis on the specific behavior of people through his

    actions to the social reality of actual damage caused by the drawbacks and therefore on the subjective and objective incrimination incrimination practices completely negative. [8] This principle has been our country's criminal law theory, as well as recognized by the judicial practice, is considered the foundation of our criminal law principle.

     Crime Elements of Elements of a general and specific conditions that constitute the points. [9] subject, object, a subjective element, the objective element is an abstract

    composition of all crimes, known as general constituent elements. But for every one of each type of crime and crime theory, the contents of its constituent elements are specific, different, and these specific, different elements that constitute the elements of the special. Elements of the abstract nature of the general and special conditions that constitute the particularity of our decision to examine whether an act constitutes a crime, can only be based on a particular mix of elements, rather than abstract general

    constituent elements. On the amount committed is concerned,

    China's "Criminal Law" legislation model determines the amount of elements to constitute a crime has actually become a part of the objective element, therefore, constitute the amount of

    crimes must be the amount required to achieve a conviction and objective criteria. According to the principle of unity of subjective and objective, subjective aspects of human behavior must also have reached the legal amount of intentional crime,

    whether it constitutes a crime, whether the amount of knowledge of the law are not in question. If the perpetrator does not meet the statutory amount of intentional crime, even if the objective factors make up the actual amount of the standard of conviction does not constitute a crime. This is what some scholars have put forth the "the amount of elements" in the amount of sin committed subjective definition of the "truncated" feature. [10]

     The establishment of deliberate what elements should be included, although in theory is still controversial, but the facts on crime awareness is an essential element of intent, then a consensus has been formed. If you meet the elements that constitute the various elements of the fact that lack of awareness, of course, also can not say have a good

    understanding of the corpus delicti. Obviously, not every crime must have knowledge of all the elements, but the provisions of the Criminal Code, once a crime must be recognized that certain elements, you are indispensable. If

    the perpetrator of a crime under the criminal law elements of elements of the composition of a particular element of lack of awareness, even with such elements objectively, we can not deliberately set up this offense. [11]

     Thus, in one case, found that Lee, Wu has sold two of the crime of infringing copies of criminal intention, not only requires two recognition, the sale of counterfeit and other signed works of art, but also for realizing the amount of illegal income will be huge. But Lee is just the price of 3

    million sold fake paintings, profit-making is less than 3

    million, but is far below the statutory amount of 10 million convicted standards, although Lee's intent to sell profit-

    making infringing copies, guilty of selling pirated products

    does not constitute the crime of intentional. Wu Although the objective profit 11 million yuan, more than the statutory amount of 10 million standard of conviction, but did not know painting is fake, just carrying their husbands earn some

money, that is, Wu While recognizing the existence of a

    mistake, and therefore guilty of obstructing or selling infringing copies of the crime of intentional. As for Lee and Oh constitute the crime of selling infringing copies of a common crime, the view is even more a lack of basis. Because

    only in the common criminal on the basis of a common criminal intention can be established, [12] and Lee did not commit the crime of willfully infringing copies sold, Wu mistaken painting is genuine before it sold two human there is no

    common criminal " meaning to contact. " Therefore, Lee and Oh do not constitute the crime of selling pirated products. Case 2, the evidence that the two just want to steal cotton shells two quilts for personal use. According to their life experiences, in the case to the cold simple shed where a good warm quilt effect of the weight should be about 4-5 kg,

    combined with the loss of processing, two quilts will take about 10 kg of cotton. Reposted elsewhere in the paper for free download http://

     2 per capita for adult criminal suspects, if they wish to steal several bags of each person is fully capable of more, indicating more than two does not intent to steal, indeed is a relatively small amount of property as a theft target, two acts of people understand the contents of property of others

    is indeed a small amount, that is not in conformity with the provisions of the Criminal Code Elements of the theft of property. Thus, two bags of cotton, the value should be the perpetrator of the theft of two the amount of awareness.

    Despite the fact that steal the rabbit, but because of the cotton warehouse for temporary storage of rabbit hair is not that unusual two-possession, had committed crimes prior to the preparatory work so that they have sufficient reason to believe that there was indeed his own stolen cotton. 2 The perpetrator knows nothing about the rabbit, the rabbit's too far in avoiding the taboo has ruled out the pairs of two "might be more willing to steal to the rabbit," speculation. Two do not have through the theft of a relatively large amount of illegal possession of property of others, intentional, that does not have the criminal intent of theft, it does not hold theft.

     In this regard, many people may be difficult to accept. Because it is generally believed that, if the perpetrator of illegal possession of subjective purpose of property of

    others, the objective to implement the behavior of the stolen property of others, but also reach a relatively large amount of objective criteria, that is, the unity of objective and

    subjective, and thus should be convicted.

     The key still lies in the unity of the principles of how to correctly understand the objective and subjective. Scholars agree that, according to the principle of the unity of subjective and objective, the establishment of crime requires not only consistent with the subjective and objective requirements, and requires between these two elements are unified. Constitutes the objective element of crime is a crime constitutes the reality of the subjective element, objective-

    oriented. The intentional crime, the perpetrator must be aware of crime in the composition of the objective facts, and hope that the results of the occurrence of harm or laissez-faire.

    In other words, deliberate and objective elements of knowledge

    are consistent with the fact that, objectively, is a subjective element, but the fact that the objective of understanding the content. Actors in understanding the process under the guidance of behavior is reflected in the objective

    and subjective aspects of the process, that is, the unity of subjective and objective. Only the perpetrator knew of or controlled conditions, that is only included in the crime, the content of the subjective element in the conditions would certainly be a crime, constitutes the objective element,

    otherwise obstructing or intentionally and, therefore, constitutes a lack of the subjective element, this behavior is not establishing a criminal .

     Therefore, the amount of offenders convicted and punished in the most basic condition that must include the deliberate act of "Elements of the amount of" understanding, because the only way to explain behavior of people understand the criminal connotations of their actions.

     Third, general intentional object errors and the unity of

    subjective and objective

     Here should also note that there is no element of objective knowledge and summarized the essential difference between intentional. General intent means that the perpetrator

know that their behavior will occur the results of a danger to

    society, but the scope and violations against the right understanding of the nature of the mental attitude is not yet clear. [13] For example, a person on a bus for the majority of persons do not pick a particular act which he knows more than

    their non-specific pick-pocketing a large number of illegally obtained property will still have to carry out criminal activities. As for the amount of stolen property obtained, it is "the more the better", whether many or few, whether the

    amount of theft convictions standards, are included in the contents of their subjective intent among the implementation of the act will not have a clear understanding. Therefore, "summed up" refers to the perpetrator of the infringement of the scope and nature of a general understanding of the basic knowledge of general intent is to identify the key. Although the perpetrator of the knowledge is general, it was not specific, like the establishment of criminal intention. Similarly, intentional acts of summed up that person

    "knowingly" psychological reality is not the burden of the perpetrator's subjective basis for criminal liability. In the perpetrator's subjective and objective understanding of discrepancies in the amount of occasions, the perpetrators of

    subjective content of the "amount" of a conviction has not yet reached the legal standard, and thus does not have a criminal offense under the properties and behavior of people outside the performance of the objective behaviors will there is no penalty when the punishment of. Therefore, the key difference between the two lies the perpetrator's subjective and objective aspects of knowledge whether the facts constitute a uniform.

     Objects on the understanding of the Criminal Code error, referred to as an object error, it means that the perpetrator of subjective knowledge on the behavior of the actual behavior of the object and its object is not consistent with abuse. [14], such as in the case of a Lee's wife, Wu will be fakes as real works of Chang Ta-chien sold, Case II, 10000 A, the text of a rabbit as a cotton two to steal it, belong to an object error. Error is the object of conduct refers to the perpetrator of the identity of the object of conduct recognized the error occurred. The key distinction here is to

    make judgments on the behavior of people understand the proper circumstances, the criminal law to evaluate the change. Only when the wrong people constitute the elements with the target

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