Elements of the theory of law on the responsibility of that type of behavior_3016

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Elements of the theory of law on the responsibility of that type of behavior_3016

    Elements of the theory of law on the responsibility of that type of behavior

     Summary Japanese criminal law relating to Elements of the theory of the responsibility of illegal type of behavior is by Seiichiro Ono raised before the Second World War, after World War II Shigemitsu Dando said elucidation of stereotypes to become a period of time in the Japanese Criminal Law Tong said the point of view. However, this type of behavior theory has been that the type of infringement, said the challenges of the

    criminal law's influence is much worse than before. Now some scholars that the different theories are based on the premise of a different function of expectations, theory is no better between the high and low distinction.

     Key words Elements of Elements of theory of law, accountability types of functional examination of

     One type of illegal behavior, said the responsibility of putting forward

     Ono of Japan Seiichiro criminal scientist mainly in learning the German Behring (Beling), Meyer (Mayer), while the composition of elements on to start is against the law that constitute the elements of the type of behavior and responsibility of its own theories. Dr. Ono is the case of this discourse, "the so-called composition elements refers to the illegal

    act and a moral responsibility to be the type of the concept of image (shape), as a penalty sentencing statute provides a conceptual basis." [1 ] As a result, "I propositions constitute the elements of both types of illegality, but also the type of moral responsibility, constitute elements of an offense and have a moral responsibility to the type of behavior." [1]

     Elements of the theory and the types of offenses, said the biggest difference is that Dr. Ono in the commission of a crime constitutes a

    system of elements, illegal sex, there are three levels of responsibility

    in sexual nature is the fundamental responsibility, that is, he is a unique moral obligation on the commission of a crime as the basis for system construction, while also affecting the moral obligation on him about Elements of knowledge. Based on this understanding, Dr. "in Yossi Beilin, will constitute the elements of Meyer's theory, illegal nature of moral responsibility as the three elements of a tie, which is recognized

    in the proceedings to follow the order of ... ... with the so-called

    thinking as the significance of procedural law, but which will inevitably become a separate thinking. In fact, if we consider the legal body, then they are in fact a three-dimensional overlap of the three concepts, from

    shallow and deep-propelled words that constitute the elements of

    illegality and moral the order of the responsibility, but the metaphysical content of the most fundamental moral responsibility, law is part of its

    part of the performance of its constituent elements is part of the performance. In addition there is a master of crime is mainly the nature of the three concepts of opportunities, through their integrated and holistic set up the concept of a specific crime. "[2] In this way, Dr. Ono

    on the basis of the composition of elements is: a crime is a moral violation of the essence, due to moral responsibility is a fundamental element of crime, and thus constitute elements of the can not be considered to be typed from the responsibility of the existence of the investigation in relation to crime analysis is the emphasis placed on an integrated and comprehensive investigation. "Elements of" and "entity" is "non-line of ethics, that is anti-moral behavior, is considered worthy of

    punishment (as punishment) behavior, as the country's moral policy does not allow the behavior." [3] " Elements of all the means is a concept, is full of ethical, moral implication of the legal concept of image. " [2]

     For example, Dr. Ono, in the conditions that constitute an

    understanding of the responsibility for the unlawful conduct outside the elements that constitute the "existence of norms as well as the subjective element is natural." Constitutes a requirement is "not only contains the

    standard means comprehensive, but also can be said to be comprehensive and involve subjective elements of the internal." [2] Dr. that although the subjective elements as the elements of an offense is limited, but from the As a type of moral responsibility in terms of the intentional and

    negligent as the subjective element from the beginning, the elements that constitute the elements. [2]

     Should be noted that Dr. Ono type of illegal behavior, said the responsibility was not made based on the principle of legality, he would

    constitute the elements on the introduction of Japan that "even a complete denial of the principle of the doctrine of legality," the establishment of crime in In addition to illegal, there is responsibility, causality of these "general ideas" outside "behavior must also deserve some special legal composition of concept", which is the import composition of the bedrock elements of theory of "the legal requirement." Thus, he maintained Elements of theory is based on the legal requirements of the principle of

    legality which is independent of the existence of Marxist. [2]

     From the Elements of the function of this point of view, then, Dr. Ono Elements of the idea that this constitutes a deliberately made with the Elements of negligence committed is different, is an element of the crime would constitute the implementation of individualized functional theory in the end. Furthermore, the composition elements are responsible for the type of behavior, and thus constitute elements of a presumption is

    not only illegal and function, but also the responsibility of the presumption function. However, due to the subjective elements, standard elements of natural elements as the constituent elements, so he does not attach importance to the composition of elements of the crime and the

    legal doctrine functions. In addition, the elements of intentional and negligent as the composition of elements can not be the result of deliberate object of knowledge does not have the intent Ershi Elements of regulation functions. [4]

     Second, the responsibility of law type of behavior that the commencement of (stereotypes say)

     With the emphasis on basic human rights in post-war constitution, the

    current formulation, even in the jurisprudence of the world have begun to

    appeal to a magistrate judge should be subject to the development of law, legal positivism ideas, constitute the elements of theory, of course attracted attention. [5] One of the most concern is the introduction by Shigemitsu Dando's "stereotyped said," from the formal point of view,

    shape the opinion of Dr. Ono said that with not much difference, but from the ideological premise of view, Dr. Dando is strict legality principle will stand position.

     Dando elements that constitute the core of stereotyped

    characteristics, "originally by the social ethics of the censure is seen as worthy of punishment and the law before, almost countless types. These are the so-called criminal type of criminal science . legislators to choose their choice of (his) provides for the law of criminal stereotypes. Criminal learn the type of behavior when the penalty, thus promoted the law can be punished stereotyped behavior. At this time, a criminal science of crime type of crime and law on the separation between

    stereotypes. ... ... This crime is a crime in a special stereotyped constituent elements, or simply known as the constituent elements (Tatbestand). ... ... Elements of a list from the stereotyped view of who is against the law , and from the stereotypes of view is suitable for

    people against acts of disapproval of the behavior (in accordance with the results of occasions, including a broad sense of the behavior) the existence of the characteristics of law, is against the law but also the responsibility of the type of behavior type. In short, illegal

    responsibility for acts that constitute the elements of the type of law. sufficient elements of this composition, that is, the first element of an offense was committed. "[6]

     "According to Beilin's ideas constitute the elements of the crime is

    not only a variety of stereotypes and subjective aspects of the objective aspects of the guidance of a common dominant image, but also express a common crime, the characteristics of the guiding stereotyped image. Although he is from the beginning Elements of the concept filled with specific content, even if this is the case, and later went on to become a constituent elements are very abstract understanding of existence. so that ultimately led to the loss of great importance to the stereotypical nature

    of the position of crime. must say, Dr. Ono to support the view Yossi Beilin, the early exclusion of his later view is appropriate. Metzger (Mezger) attempt to combine elements of unlawfulness and composition, emphasizing, as the composition of illegal type elements constitute the elements can be understood as full of substance content of its existence. However, he would constitute unlawful sex with a direct element combination, in every sense, it is not appropriate. First, the concept of

    a specific type of unlawful non-sexual and types of (abstract) concept of

    Elements of placing side by side, in theory, it is not appropriate. secondly, because the elements alone would constitute unlawful to understand the type of criticism. Third, the crime, the importance of

    shaping the first time this view has not been demonstrated. Although Metzger's views and the views of Mayer, and Yossi Beilin, the relative is known as constituent elements of the new theory, but for the pros and cons of the above have to pay attention. "[6]

     "We need to constitute the element, constituent elements deserve the facts, constitute the elements deserve sex (Tatbestandsmabigkeit) distinguish between the evaluation." "Elements of deserved judgments can also be called Elements of the evaluation, the value of a normative evaluation of (at least is a relevant facts and value judgments). and the offense is a specific responsibility to determine the relative judgments, constitute the elements deserve judgments are based on an abstract base

    too stereotyped judgments. a social thing, as, in the acceptance of composition Elements deserve judgments only when the meaning of the Penal Code began to appear in the world. Although deserve Elements of the abstract stereotyped behavior is not necessarily the responsibility of a specific offense, but the other hand, should not be stereotyped as an abstract composition of elements of behavior, it does not exist (to discuss) whether it has room for illegal and responsibility issues. "[6]

     Dando considers that the elements concerned, according to different criteria can be divided into different types, can be divided into elements and normative account of the elements, subjective and objective elements of the elements and so on. For your convenience, the elements will

    constitute the elements are divided into types of constituent elements as the offense elements and as an element responsible for the type of constituent elements. For the composition of elements as the elements of

    illegal type is included: the main act, behavior objects (Handlunggs objekt), acts of state, behavior as a result, the subjective element of illegal (intentional, negligence, and the purpose of committing the purpose of committing a tendency to tend to , performance guilty of the

    psychological processes); for as an element of responsibility for the type

of constituent elements include: intentional, negligence. [6]

     Elements of the function for the terms of the theory of the function of criminal law and social functions. The function of the so-called theory

    of criminal law refers to conditions that constitute commission of a crime should play as a pillar in the theory of functions. Elements of understanding of the nature and responsibility for the illegal type, to

    form the core elements, we can build all the constituent elements of crimes closely related to and consistent system of criminal law theory. Elements of sex as a crime deserve the establishment of the first elements, first on the elements of law and responsibility, as long as

    nature does not recognize the constituent elements deserve, there is no law and responsibility and then to be treated as a problem room. Moreover, in line with constituent elements, the presumption of illegality and accountability on the existence of a syndrome called Elements of the table of function. In addition, for offenders and accomplices attempted provisions, it should be understood to constitute the elements of the amendment form, but also by the number of Elements of the crime to guide

    and, therefore, constitute the elements with the commission of a crime as a pillar of significance. The so-called Elements of a social function, the

    function is the protection of liberty and order functions.

     Third, the responsibility of illegal type of behavior that the new


     (1) West Tiandian the composition of elements on the

     Nishida that "what constitutes the elements, you want to close them is very difficult to define, but if starting from a criminal law point of

    view, constitute a regulatory element is a penalty in addition to the effect of the Law (Legal Sentence) other than the part. ... ... then, what is the constituent elements, often must be determined through interpretation. ... ... In this way, constitute the elements of that from

    a variety of factors posed. Thus, the constituent elements is the type of behavior may be punished, in addition, constitutes Elements of the elements and behavior is still illegal, there has been responsible for the existence of sex-related. In this sense, constitute the elements of an offense, the type of responsibility. However, in theory, so far, such an understanding is not a general understanding of . It depends on how to determine the function of the constitutional elements. "[7]

     "If you will form the elements of this crime, the establishment of conditions on the doctrine of legality requirements, then it is the most important function is to 'do not constitute a sexual element deserve no crime' this protection function. Thus, the crime is to punish violations, there are responsible for behavior type, the constituent elements of course, is illegal and responsibility constitute the elements together constitute the elements of the responsibility of the illegal type of

    behavior. In this case, because the objective elements of the responsibility of course, be included in the understanding of intentional objects, so only from the deliberate regulation functions will constitute the elements of this proceeding is against the law understood as the

    composition of elements is not correct. In addition, because of deliberate, negligent, etc. can all be the responsibility of the type of punishment, of course, should be the responsibility of the elements constitute the elements. Thus, the the establishment of a crime or not, at least in concept is based on conditions that constitute an offense deserve

    the responsibility of ? ? Elements of law negates deserve the

    responsibility of ? negates the order carried out. "

     "These constitute the elements of the theory of the beneficial can give the following: first, by conditions that constitute an illegal

    penalty, as may be the type of responsibility, to maintain its most important protection function; Secondly, will constitute the elements is interpreted as a Elements of law and responsibility constitute the combination of elements that constitute the individual elements of the crime of functions can be achieved; third, by recognizing the conditions that constitute an offense deserve the presumption of law functions, responsibilities constitute the elements of the responsibility deserve the

    presumption of sexual function to correspond to the Criminal Procedure Law Article 5 of the Procedural Law of the functions ... .... Fourth, the absence of a need to recognize the so-called Elements of a deliberate, to

    avoid a logical contradiction. Fifth, and finally, the most important beneficial is an accomplice in the field to ensure the security function. [7 ] reposted elsewhere in the paper for free download http://

     (B) the composition of elements on Hitoshi Saeki

     Saeki deemed to constitute elements of the concept of which one is appropriate, depending on the different functions for the Elements of expectations. Elements that constitute it, its functional look forward to what is it? Elements of the doctrine on the function of the following:

    First, the legality function (protection function); second, individual-

    based function; third offense is presumed to function; fourth, illegal as well as the responsibility to determine restrictions on the content of function; Fifth, the deliberate regulatory function; sixth, attempted murder, an accomplice and the crime reference number, etc. functions; 7th, criminal proceedings instituted function.

     Of course, Elements of the concept is fully equipped with the function of the above is not possible. As a value-neutral type of behavior

    that do not have a third function; but as to say constitute the elements of an offense type are not fully equipped with first, second, seventh function. Elements of the controversy surrounding the concept, in fact,

    constitute the elements surrounding the function of looking forward and proceed.

     Elements of the responsibility is understood as an offense types, intentional and negligent as the types of liability are also the elements included in the composition. Constitute the elements of this concept is the most suitable doctrine of legality, not only students but also the general composition of the elements most easily understood concept. In all tied for the lowest railings whether a railing should be considered the

    most vulnerable across the railing then? Elements of the concept for this, although Hirano Dr. Long Yi that "If this is the case, can only be said to constitute the elements of the theory have been collapsing," but as long as the conditions that constitute the elements of crimes does not mean that overall, they can Elements of the theory that did not collapse bad. [8]

     Four types of illegal behavior, said criticism of the responsibility of

     (A) From the standpoint of behavior type, said criticism of

     Japanese scholars in Tian Wenzhao that "constitutions and illegal, have a responsibility in criminal law system, whether it is a logical relationship between principles and exceptions of course, there is doubt. Illegal, have a responsibility to determine if only negative, additional, exceptions to judge , then the resulting behavior is the presence of the chosen subject matter exception to the behavior, that is, only refers to those legal acts (not illegal), with no responsibility. As for the

    positive acts of illegal and responsibility can not be confirmed. Of course, , the exception does not belong to the subject's behavior could also be logically drawn are illegal and have been responsible for acts conclusion. Introduction to those who may be so large to consider. but, if so, there is no need to consider the illegality of the strong or weak, then for a law or do not have to punish unlawful sexual conduct can not grasp. as to build tight, refined system of criminal theory in the form of

    crime to point to the concept of system, which I am afraid we can not say what is a good system of . In addition, if the constituent elements as the type of offense, then what shall constitute the elements of the first acts of the elements should be unlawful, and the other hand, self-defense, etc.

    can not deserve Elements of (negative elements of the composition of elements of the theory). Thus, the commission of a crime ultimately become constitutions and responsibility of systems, into a return visit after two

    will be able to identify the perpetrator very loose system. If you think that it is illegal Elements of the type of responsibility, then, simply deserve Elements of judgments can be determined criminal. Fortunately, the theory is not yet fully to this point. However, recently in Germany and Japan pass that would constitute unlawful sexual element and the question of the relationship mix the elements that constitute an unlawful elements that constitute elements of commitment to the burden of inappropriate,

    illegal just to be on the negative negates the theory of law, and thus a tendency to appear hollow and barren. "[9]

     (B) From the standpoint of the type of infringement that criticism

     Japanese scholars from the two pairs of thick Yamaguchi Elements of

    the responsibility of the illegal acts of the type that made criticism: the first from the constituent elements of the function, that is, he maintains that "as the intentional elements of the responsibility, the fault belongs to constitute the elements. By this, although certainly constitute the elements of the crime, and illegal presumption of individual functions of functions, but denied the intent of its regulatory function. "Secondly, from the confusion of a criminal offense based on the

    System of sex and the responsibility of the angle that the constitute the elements of the offense based on the responsibility of behavior type, said, "Elements of is a crime itself, that is, become a crime, the setting up of elements of the overall (from the crime, the establishment of the

    establishment of the elements of the subject matter of obstructing or discharged), constitute the elements were lost as an independent the establishment of the significance of the elements of the crime. Moreover, the illegal elements of the responsibility of the distinction between elements and become very ambiguous, confusing elements of both to conduct constitutes deserve judgments is very dangerous. This has prevented the commission of the offense based on the substance of the established

    distinction between the elements of unlawfulness and responsibilities to carry out analysis of the different principles will not only lead to bad 'examination of the whole' but also inappropriate. "[10]

     Ida-liang Japanese scholars have a responsibility to the illegal acts of the type that, from the three put forward his views, in his view: first, even the ability for such an important responsibility to the responsibility of the elements of its constituent elements as the elements

    to consider is not possible, only identified it is difficult to constitute the elements deserve the presumption of responsibility; Secondly, if the Elements of the fish that exists between the responsibility of the close relationship between the non-points, then the establishment of a crime or not is probably a one-time judge, a criminal element of a is divided into three meaningless; third element in the composition of layers deserve consideration not only the law but also consider the elements of the

    responsibility factor, easily lead to unlawful sex and responsibility of confusion, so that system, independent of the illegal nature of the responsibility to determine whether ( On the request of the objective law) becomes impossible. Therefore, the type said to constitute the elements of

    an offense is not the responsibility of the type of view is appropriate. "[11]

     Nishihara, Chun Fu Boshi that, first of all for the constitutions and illegal sexual relations, criminal law standard two-tier structure is

    included, the specification must contain a "no justification for ... ..." This kind of front-end content, but also includes the conditions that constitute the type of which consists of standard elements "may not (or not) ... ..." and so on may be part of the standard front-end there is no

    law that negates the main subject that is not illegal, the latter section

    refers primarily to the contents of a command or prohibition constitutes an element, therefore, Elements of the subject is illegal and illegal

    nature negates the elements contained. Second, the constituent elements deserve the responsibility of sex and relationships, in Japan claim that the conditions that constitute the type is not only illegal but also the responsibility of the type, but in the end is the responsibility of the

    type used in what sense is not clear. First, unlawful sexual violation of the norms of conduct, on the contrary, responsibility is the possibility of censure actors. However, although the Elements of violations of various

    norms "behavior" typed, but it is not possible with the resulting condemnation of "actors" related to the type of situations. Second, even if the constituent elements is to determine whether or liability, the size of this type of sense of responsibility, then it is not appropriate.

    Indeed, constitutions and responsibilities of availability, the size of a relationship, but it is through the illegal availability, size of the media, constitute elements deserve unlawful act without direct responsibility to judge the judge is not acceptable. As a result, if such a concept like the responsibility of the type set up, then it is the equivalent of shelves housing estates, no meaning. Responsibility for the evaluation of the best non-type evaluations. Another third, implementation

    deserve Elements of act, if there is no liability if the subject matter in principle, negates all have responsibilities, even in this sense, the responsibility of the type used is not right. It is precisely because it is an offense Elements of the type of behavior, therefore deserve Elements of principle, be presumed to be illegal or is illegal, but because of constituent elements is not a condemnation of these produce a variety of situations the possibility of the type of Therefore, the responsibility

    can not be presumed. Most of those who commit acts of violations are responsible for the fact rather than mere legal presumption. For the above reasons, do not think that this book constitutes a requirement is the responsibility of the type, only be understood as an offense type. [5]

     Japanese criminal law on the Elements of the concept of the doctrine can be divided into type of behavior that the type of infringement that type of behavior, and illegal, said the responsibility of three major

    types. However be noted that, in the three major types can also be separation of the different branches, such as the type of violations that constitute the elements, in accordance with the law of different relationships can also be divided into knowledge and the presence of

    grounds for saying that grounds for saying that, [ 12] have a responsibility in the illegal type of behavior that, in accordance with deliberate, negligent or unlawful elements is the responsibility of the elements and can be divided into different branches. Faced with so many

    issues relating to the same doctrine, in the end they are excellent As everyone bad, how should the evaluation and choice? As a Japanese scholar said Hitoshi Saeki, these concepts constitute the elements of which one is

    appropriate, and ultimately depends on the different functions for the Elements of expectations. Constitute the elements that exist in the real world is not a "matter", but scholars have created, as the commission of a crime have certain features in the concept of props. Elements that

    constitute only a concept, and therefore it may have a variety of definitions, but whether the concept should be able to play according to

    the commission of a crime in the function to determine their advantages and disadvantages. As a result, because as props to be based on their ability to achieve its functions changing the same time, with the same purpose with the Tao are many, which one is more convenient to some extent depends on the value of the user's preferences. Similarly, the commission

    of a crime as a prop for the concept of constituent elements, the discussion of various conditions that constitute the concept that one is "correct" the problem itself is meaningless. [8]

     Notes and References

     [1] [days] Ono, Seiichiro. Elements of the theory of crime [M]. Wang Tai translated. Beijing: China People's Public Security University Press, 2004.

     [2] [Japanese] Ono, Seiichiro. Elements of the theory of crime[M].

    Tokyo: There Fei Ge, 1953.

     [3] [Japanese] Ono, Seiichiro. Introduction to Criminal Law (updated version) [M]. Tokyo: There Fei Ge, 1960.

     [4] [days] Naito him. Criminal Law Lecture remarks: on the [M]. Tokyo: There Fei Ge, 1983.

     [5] [days] Nishihara, Haruo. Strafrecht Allgemeiner Teil revised

    version: the book [M]. Tokyo: written Church, 1995.

     [6] [days] Shigemitsu Dando. Outline of remarks Criminal Law: Third Edition [M]. Tokyo: Chong Literary Society, 1990.

     [7] [days] of the West Tian Dian.Elements of the concept of [A].

    West Tian Dian's, Yamaguchi thick compilation. Criminalcontention

    point: the third edition of [C]. Tokyo: There Fei Ge, 2000.

     [8] [days] Hitoshi Saeki. Elements of theory [A]. Law Classroom [J].

    No. 285.

     [9] [days] in Tianwen Zhao. Rescheduled Criminal Law I: General

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