Sex and crime, constitutes a legal norm_6126

By Luis Barnes,2014-10-31 18:50
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Sex and crime, constitutes a legal norm_6126

Sex and crime, constitutes a legal norm

     Summary crime is constituted with people's moral values the basis for judging the behavior is deemed to have no alternative but to impose penalties against the means to complete their "crime" of the process of

    the law after the crime Shangxing structure model or specifications --

    their application is recessed rather than outside the sheet. It is the doctrine of legality to give criminal norms in order to thoroughly referee the inevitable normative requirements, the basic significance of the

    guidance, discipline and regulate the administration of justice act.

     Key words that constitute a crime / referee specification / Model / Prototype

     We can not go beyond the limitations of self and can not understand

    things authentic. However, within our reach, it is still one should be fought for ideals.

     - Benjamin Cardozo N *


     When the human capacity to choose the law of this "society of organized violence or special means of social control" [1] (p.1), the

    order to maintain its population to survive and to protect their legitimate interests of the individual can obtain the support of external coercive force so as to compensate for the limitations of other regulatory measures. This is because the "law as a rule, its primary, based

    significance is to provide people an idea of the guiding image; social interaction in advance to keep this image and the entire process of communication from time to time to comply with it (the Law the basis of morality and maintain a high degree of consistency in the law for people to build the image of providing the maximum possible). the law is only a secondary significance of the penalties for breaking the rules - in order

    to always maintain the authority and effectiveness of the rules "[2 ]

    (p.43) (Emphasis cited were added). In order to examine the criminal law, rule of law in a democratic society is able to understand the nature of national criminal law norms that regulate not only the criminal code of conduct, but also referees norms, but also a cultural norms; (Note: Zhang Mingkai: "Criminal Law" (first volume), Law Press, 1997, p. 28-29. book of

    the Penal Code to define the characteristics of norms are cited note the following: "Criminal Code norms from the phenomena or expressions of view,

    is a kind of referee (trial) specification, which is directions or instructions to staff on how judicial ruling to determine whether the conduct constitutes a crime, the crime to be held criminally responsible as a norm "," criminal norm is also a crime against ordinary people to implement a code of conduct, namely, criminal justice standards as codes of behavior, the point is targeted at ordinary people, which prohibits most people carry out criminal acts, to the general standards of conduct

    to provide evaluation, with a view most people do not carry out criminal acts, "" The essence of the Penal Code regulate state-sanctioned cultural

    norms reflected in the criminal law. cultural norms that are specific to culture As the context of ethical and order on the employment, the trade laws of the requirements of upper norms of individuals collectively. "see also Zhang Mingkai:" the commencement of the Criminal Code motto, "Law Press, 1999 edition, p. 37. traditional law Neo-Confucianism of legal

    norms model assuming - too general and vague understanding of the

    consequences, there is no distinction between the normative acts of legal norms, referees of normative and cultural norms.) which is the first two are generally recognized by the public that the law has a universal The internal basis, "it is legal for people to build the image of providing the greatest possible." As futsu Dole said, an act of the real-makers,

    legislators are not individuals, but groups, legislators, but this group's

    loyalty or lack of loyalty to the voice only [3] (p.71), "the law is a by the more profound than the personal will of the factors that determined "[3] (p.92), this profound factor is the law to be imposed by the dominant culture group of community-wide moral values. Because any one nation must live with the laws of religion, morals and customs have a fundamental agreement, without the intervention of foreign powers Under the circumstances, with the nation's morals, customs or even completely incompatible with the basic laws are not naturally occurring [1] (p.110). This is to the cultural norms of the Penal Code regulate the starting point and the start of their codes of conduct and normative decisions to be discussed.

     Criminal Code of the code of conduct is generally prohibitive norms, it is used to bind all people, can not regulate people's behavior as a criminal prohibition, so as from the denial of people's behavior to provide guidance to draw up a behavior pattern, that is, a "concept of guidance image. " So the law is how to build such a pattern of behavior from it? When we stretch in the tentacles of rational thinking kind of states of different civilizations and procedures under the Legal Regulation of the object - when all the people, they discovered a paradox

    of embarrassment: the vast majority of all mortal beings do not seem to know the specific laws provisions (of course, such a situation non-ideal,

    is also a legal person ashamed to see.) Based on this, we can see shaping patterns of behavior more rooted in the social ethics of the people around

    us have been asked to sanction the harm behavior experience feelings till the intersection of identity to get the law shallow and dim perceptions, and thus do not build up with the idea for and how to guide image; while

    the penalty for endangering behavior generally does not require the perpetrator to understand their unlawful act rather required to understand their behavior harmful to society as a good reason attributable to illustrate this point. But the rule of law country and culture, the

    formation and development of the country calling for the law of this hazy, and covered with up to a clear understanding of the veil, the face to face to understand, so that law-abiding people to become conscious, and not

    because of ethical opinion spontaneous and driven to become law-abiding.

    As can be seen, different kind of state of the laws of civilization and its forward-looking development of the regulatory system of people's behavior is through this way to play a role.

     Of modern criminal law is different from the previous Criminal Code of modern society is essential is that the modern rule of law in the country's criminal law norms is the real judge of the complete specification. The first modern society, extralegal use of torture, meted

    out arbitrarily broken, illustrates the one hand the harshness of the rulers, non-rational legal deterrent to regulate the behavior of the general public; the other hand found that crime, punish violations often go beyond the law, Any access to human sin, by virtue of the judicial magistrate momentary personal feelings of the fluctuations in the completion of the evaluation on behavior and the behavior of people at fault, the people's freedom, property and life is like Shitongerxi

    disposal. Thus, the former judge of the Criminal Code of modern society is weak and not normative sufficient. The legislators in the throws of a law making it effective, the state must be fully ensure that the law could be actionable, otherwise it is just a "living to die." The criminal law aims to protect the legitimate rights and interests, which requires the violation of the legitimate rights and interests of the punishment, on the one hand rule-based, on the one hand through the strict application of

    regulatory requirements to restrict the administration of justice's decision acts to prevent their abuse go beyond the legal boundaries Shi arbitrary. Otherwise, the judge's legal basis will show a variety of potential referees, which is exemplary of the crime for trespassing off!

    Criminal law is the Magna Carta of good people, but also the Magna Carta of the perpetrator. In modern times, many standing on the forefront of human reason pioneer blood and sweat "as the right to fight" (Garling language), we enjoy these rights, must not ignore the new violations of rights. Especially in a habit of acting in an official personal preferences decided by the sway of the countries, often nominally a right to self-appointed bodies to protect those rights violated by the state,

    advocating criminal norms referee normative, more sense of historical responsibility and urgency of sense. It admits the face of the administration of justice by: they, as ordinary citizens, must abide by codes of conduct; them as the administration of justice will be required to strictly follow the norms referee!


     Discussed above in the strict sense of the referee from the modern norms, in particular, it is the inevitable requirement of the principle of legality. Beccaria On the Road: "Only the law can be as criminal penalties were stipulated. Only by representing the united under the social contract and society as a whole before the legislators have that authority. Any judicial officer (he was a part of society) are not self-proclaimed fair

    and to the community, another member of the Branch penalty. beyond the limits of the law is no longer the penalty is a just punishment. Therefore, any judicial officer not to be a passion or public welfare as an excuse to increase criminal penalties for citizens of the established "[4] (p.11)," When a law has been determined, it should be verbatim to comply with the judge's only mission is to determine whether the conduct of citizens in line with written law. " [4] (p.13) Feuerbach, the father

    of modern criminal law in the "principles of positivism and the basic principles of criminal law amendment," a book states: "The behavior of each of the sentences should be based on the legal sentence." The Feuerbach "Where there is no law, where there would be no punishment of

    citizens," a phrase it is to make the spiritual essence of the principle of legality according to Geingeaud Jie. [5] Modern down are in many other countries have constitutional or criminal law are expressly provided for

    this principle.

     Even if people are dogmatic doctrine of legality have a lot of condemnation, but the man's pre-modern despotism, repression of human

    nature and society still vivid, even decades, till centuries away. And each historical era faces some major issues of social control, these

    problems will require the most intelligent people to use their wisdom to solve them. Legal thinkers have tried to motivate them to contemporaries to be concerned with the existence of their respective times of certain

    acute and urgent need to address the problem. Examination of the history of civilization, you can enable us to understand modern up to contemporary society - at the start (more than the human beings are ignorant and autocratic regime of the history) from a brutal and stifling humanity

    under the framework of barriers - the focus of our time concerns the

    question still lies in democracy, human rights and the pursuit of peace, and all this is the legality of the real contemporary ideological and theoretical foundation. [6]

     Thus, to establish its legality under the criminal law is to establish a normative standard of referees, to restrict, regulate the administration of justice's decision behavior to minimize the arbitrary nature of acts of the administration of justice, namely judges to provide a referee mode. Then such a decision model is how to construct it? As the criminal law is to provide what conduct is a crime and how the punishment of the law, so the criminal law decision model includes two aspects,

    namely, the model and the punishment of the crime of models (the crime of statutory and the statutory sentence is the basic connotation of the definition of the crime of criminal law) . Is generally believed that the

crime of the model includes the following factors: the concept of crime

    provisions of constituent elements of criminal provisions of the provisions of specific crimes. Which in turn are derived from following this process: When lawmakers in many types of life against criminal acts after evaluation, with regard to criminal violations of form and structure from a list of crimes, the list of crimes is to punish law takes effect unite in acts that occur after the legal documents against. That legislators through the use of their abstract thinking grasp the dangers

    of living in the behavior of strange things common features (Yiping these characteristics have on the awareness of the dangers can be made), to be kind of distinction between these classes with Peter, but in the "prototype "on the basis of the abstract inductive come" common feature "in the law on the establishment of the crime turned into a basic, minimum conditions (ie the elements - the necessary conditions), so type structure of a type of conduct to determine the standard or specifications. And the

    standard use of "compliance assessment" in the theory of knowledge to be identified on the request to be harmful conduct must be an element of each of the nature of the act can only draw a firm conclusion, that has characterized the nature of the standards - constitute a kinds of specific


     This in fact shows that the law as the binding act of the administration of justice in advance of the numerous construction law the crime of statutory model, as the case cf. However, because of legislative

    resources, conservation, and the legal provisions of the form simple, clear requirements, and therefore the construction of this model not by sub-rule independently, but its elements are scattered among the general principles and sub-rule, and even the provisions in other laws and

    regulations process, such as committing most of the administrative provisions of the blank counts, combined with the abstract language of the law general, these are bound to impede the crime control model is easy to

    understand in real terms. Therefore, the theoretical explanation emerged, even in a time when the conditions are ripe, the legislature make a legislative interpretation, judicial interpretation of the judiciary to resolve their differences, to adjust the previously existing models. In

    this way, to note the basis of criminal law and disciplines of modern criminal law but also because the establishment of study and research methods to determine which can be formed, and the establishment of a discipline needs a basic theoretical system and a large number of professional concepts. Thus, in criminal law and disciplines, the law provides the standard model of a crime, our criminal law scholars in Japanese translated from the use of a legal concept - that constitute a

    crime - to the allegations of (but the connotation of the concept and methodological significance of have absorbed the essence of the former Soviet Union criminal law theory, but with the Japanese criminal law as well as civil law in the meaning of the concept and methodology far

    removed from, which can be attributed to the value of different cultural backgrounds and different ways of thinking paradigm led to this Construction of a model of difference). Can be seen, the legal concept is a product of human language, rather than the product of a natural object, its basic meaning is that it can be seen as a brief way to identify those with the same or common elements of the typical tools of work situations.

[7] (p.484) Thus, we should pay more attention to issues discussed

    conceptual representation of the substance. Of course, in order to be able to think clearly and rationally legal issues, we must build the concept of a strict manner. Therefore, for a crime constitutes a crime, it is only a statutory model, is a standard, rather than to treat it with real-life

    crime ran the prototype confusion (which is why some scholars constitute a crime, when no agreement in the discussion of the reasons). From this, the secular life of crime exists only in prototype and does not constitute a

    crime, only in the sense of legal norms - strictly speaking, is the norm

    when it is a referee - there is only constitute a crime, and "act in

    accordance with criminal constitute ", it becomes a justice who finds that the establishment of a prototype of the ultimate crime, the only basis. Because "the true nature of things is not the thing itself, but rather we construct between the various things, and then among them felt that relations" [8]. Thus, criminal law scholars on the "statutory crime

    constitutes a crime constitutes a de facto" the premise of the distinction lies in the composition and hazards of crime act in isolation as well as against each other, but from the relationship between the two did not grasp the essence of things - while the real qualitative behavior of

    natural hazards is through to grasp the relationship between the two to be completed.

     Constitute a crime under the law is always concrete, a crime for a criminal offense consisting of inductive abstraction, forming a general

    sense constitute a crime. Obviously, its formation process is that it is theoretical in nature, but its basic content is still derived from the statutory crime constitutes a crime of the contents of this should be the concept of property that constitute a crime the attention of scholars dispute. Traditional criminal law in general sense is usually defined as concepts that constitute a crime "under the Criminal Code, the decision an act harmful to society and the extent of the acts constitute a crime, all

    the necessary elements of the subjective and objective elements of the organic unity. "(Note: Chen Xingliang:" remarks apply to the Criminal Code ", Law Press, 1999, p. 129. traditional criminal law it is defined as" the sum of ... ... "(see" Principles of Criminal Law, "p. 444), subject to the other the comments of academics, "can not constitute a crime attributed to the sum of the various elements, but should be faithfully at it as an organic whole, a complex social system" (see He Bingsong: "Criminal Law

    Textbook," China Law Press, 1997, No. 182-183 pages). We believe that the

    accuracy of language, the "organic whole" logical.) This definition reveals the concept of connotation, but we would like to stress this is not an ordinary scholar pay attention to the fact that the administration of justice constitutes a crime, to provide referees with a standard methodology significance - when the legislative provisions that constitute a crime after the completion of the new things into the old frame, another

    example of these phenomena follow the established concept of the line fitted look inside a.

     From the above analysis, it seems that can draw the following conclusions: The crime constitutes a crime is a doctrine of legality referee to give a thorough criminal practices to be used for the normative

    regulation, constraints, arbitrary acts of the administration of justice in the legal structure of the type of crime identified Yue standard or model, constitute a crime in the general sense is a construct that has as

    a basis for general principles nature of an academic programmatic model of general crime. Reposted elsewhere in the paper for free download http://


     Before the commencement of the discussion before the next question,

    there are several areas need to be agreed, in order to avoid unnecessary ambiguity, but also can be used as discussed in the following premise. As mentioned above, the legal decisions that constitute a crime is evidence -

    regardless of whether the administration of justice in their creative

    thinking in the use of the concept, but in his treatment of cases handled by the qualitative understanding of the process has followed the statutory model Sometimes, this follows through to the subconscious to follow prior

    case law has been achieved (which in the case law is a conscious state) -

    to a deep understanding of the evidence, we need theoretical explanation (the right to interpret the law but in fact become the standard part), so that crime constitutes a crime, posed with the theoretical interpretation of course ought to two different areas, it is self-evident. The proposal

    of the concept of crime constitutes a historical evolution of theoretical principles and methods of interpretation and the different legal systems

    constitute a crime, a comparison of the model to explore issues such as these was undoubtedly the "criminal constitutes a theory" category is no doubt. The composition of the following internal structure for the crime, the discussion is in order to constitute the crime of statutory content-

    based interpretation of the level of theoretical launched.

     Adoption of a principle and a system designed to be the first priority is its operability. The reason why the legal means to enter the human field of vision, it is based on the provisions it can be applied to reality, different times, differences in legal systems is more due to the degree of development of civilization over the same period - the latter

    decision means operable to determine the means choice. Similarly, the law

    constitutes a model of crime, its goal is also to be applied to real-ran.

    However, through the analysis of crime constitutes only to find it so is scattered, general rules, in sub-rule as well as other laws and

    regulations of the various elements of closely integrated into an organic whole, its rough nature, and even the monotony of lines to be compared to hazard evaluation behavior of richness, diversity, and in terms of flesh and blood, its actual operation may be much reduced. When the integrity of

    things stronger, its more chaotic clear understanding of its nature more difficult. Therefore, in order to make "The court found that the dispute between the parties after the fact, you can follow the logical process of deduction attributable to these facts, under certain rules," must "before we do so, the judges it is necessary to constitute the rule Some of the ambiguous part of the measures or to explain the concept of uncertainty. "[7] (p.490-491) and in the development of civil law countries, this

    interpretation is more of an academic and theoretical explanation, through

    the education system to complete the training of judges directly or indirectly, to influence the judge who later acts of the administration of justice. This theoretical explanation is based on the basic direction of analysis and synthesis of logical thinking as a guide, starting from the crime constitutes an organic whole, a close study of its internal structure, reverted to the whole.

     To note the basis of modern Criminal Law Criminal Law Criminal Law of the crime subject to the provisions of its research centers, rather than the actual probability that crime, which is an interdisciplinary study of other objects (such as Criminology). Ming Wu this section, so as not to

    deviate from the direction of interdisciplinary research; otherwise discrete disciplines, the meaning of independence and it would be difficult to understand. Therefore, the composition of theoretical explanation of crime when, according to the law provisions, in particular,

    constitute the elements of crimes to determine the content may not be taken for granted additional conditions outside the law, but may not be real probability that the prototype presented in all sorts of crime, the fact of factors identified its which set the standard elements of a crime. Model is a crime of such acts of induction and abstraction, is the human spirit leap from perceptual to rational outcomes, like paintings, a few pen and drew a "mountain" of the basic characteristics, so as to countless

    types of different types of people to get to know Mountain. The appearance of cases of extremely vivid, ever-changing, not to mention the fact that

    investigating authorities to investigate crimes, and seized a lot of crime, people always want to collect evidence, to determine the detection direction, outlining features of the suspect, confirmed criminal time, place, means, tools, etc. Its content is as the statutory elements of the standards simply can not include, because the latter is determined nature

    of the cases the minimum requirements. Therefore, the establishment of the standard elements of a crime to be able to distinguish between different. The major distinction between a crime around the object, objective aspect, subject, subjective to be completed, as a basis, the traditional criminal law Tung said he would make a general sense of the four elements that constitute a crime, said that the object element, objective and important condition, the main elements, subjective element, is in line with the

    above-mentioned requirements. However, some scholars of the principal elements, the object element is quite critical of and advocated his "can not be, nor should constitute the essential elements of crime." [9] However, the offense constitutes a legally established as a model of both is to identify real-Ran Establishment of a criminal act of endangering the standard at the same time is no crime against the establishment of standards for behavior, thereby achieving constraints, regulate the

    administration of justice act, should the model among the non-subject

    condition, object elements, how to complete the task of the normative nature of its decisions ? Indeed, the administration of justice in order to hold the object has been affected by crime, abuse, crime, met the

    conditions for the premise, but only after the process of existence and the nature of the act is found to constitute a crime in this model as a reference. Some one crime, the object of quite different, it is strictly a

    legal distinction, such as the referee based on the law is not yet able to distinguish between a crime, the administration of justice in face of

    strange cases, but also on what basis for them to "a certain crime "The name should be punished for? I am afraid that will only end in "an offense

    was committed be punished," half-hearted decision in such a general vague

    bar! For example, the same destruction of means of transport, such as object elements without distinction, how can they distinguish the crime of destruction of means of transport (endangering public safety) and intentional destruction of public and private property crimes (violations of property rights). For the main elements of the legal from the age of criminal responsibility, criminal responsibility (in some crimes require a

    specific identity) aspects of the accreditation to be really natural in such acts do not meet this qualification, so the judges are not allowed to identify their crime, which Naishi the legal model as a referee norms on the administration of justice are imperative. Criminal law norms as a code of conduct prohibits any person from the implementation of the Criminal Code to prohibit the conduct; criminal law norms as a referee specification, into its scope is limited to dealing with the perpetrators

    of crime constitutes the main qualifications in line with the behavior. Therefore, as part of Magistrates specification will require the main elements that constitute a crime. Here, we need not worry because the main requirement is a statutory qualification, while the majority of the common good of citizens became "the main body of crime" because the crime constituted the main elements of the law is only to confirm the qualifications of the principal, while the "crime of the main "This

    concept is not expressed in this sense, it refers to the real perpetrators of the crime ran (of course, this requires a series of concepts to be redefined, so I quite agree with Feng Yadong teacher's" concept of Criminal Law "in the establishment of [2] (p.196).

     Traditional criminal law on the crime constitutes a "four elements that" the decomposition theory is appropriate, both to solve a crime constitutes an overall strong and weak operational deficiencies, but also constitute a crime, this model did not lead to dismantling too small to

    avoid the piece of a jigsaw, is split on one end. (Note: The "essential conditions" on the other a long time, mainly the "two elements that" "Three Elements to say" the "Four Elements to say" the "Five Elements said," and so on, in which each point of view there are many different versions. The specific details refer to Chen Xingliang : "Criminal Code applies to remarks," legal Press, 1999, p. 124-127 pages.) However, the

    content of the various elements of the established definition of the

    concept, we should follow the human experience has shown that the principles of logical thinking: (1) Elements of a crime constitutes a product of decomposition, its basic meaning is still the "model"; decomposition of various elements of each other must not be cross-

    coincidence, or is completely contrary to the principles of logic. (2) the various elements of the "definition can not be a loop," or "definition of the concept can not be directly or indirectly, is defined to include the

    concept of ... ... If you violate this logical rules, or guilty of 'tautology' or guilty of 'circle the definition of 'error, the results of these two errors, we can not reveal the content of the concept "[10]. For example, the traditional criminal law on the object element is defined as

    "under the Criminal Code, for criminal acts violated the relationship between socialist society," the logic of the definition is obvious

    improper, because the object element is only recognized the establishment of a criminal element, and only various elements of Ju met, make a final determined after the final to be held to act as a criminal act against. (Note: Based on the above understanding, the author composed of four elements of the crime to make the following definition of immature, in

    order to peer correction: the object element is defined as criminal show legitimate rights and interests are protected; objective element refers to the harm under the Criminal Law social behavior; the main element is under the criminal law the age of criminal responsibility, with criminal responsibility of natural persons (legal persons is another matter); subjective element refers to the criminal law under the subjective mental state, that is, sin in general, including awareness of factors and will


     The administration of justice through their creative thinking to complete the cases of compliance to determine the one hand, the elements that constitute a crime as a specimen, the case was confirmed as evidenced by the fact that "horizontal split-by-block analysis, comprehensive

    evaluation" [2] ( p.173) - First come, "Elements of compliance,"

    understanding, this time, basically completed the qualitative analysis of behavior; but on the other hand, "whole is greater than the sum of its

    parts in isolation" (Bei Talang language) the completion of the After understanding the elements are certainly in line with, but also integrated the whole case, to make "case in line with crime constitutes a" final identified, especially for those who are in danger of criminal behavior on

    the critical point to determine the qualitative analysis, but also should pay attention to this. These are based on crime as a referee should be composed of meaning. If the composition of various elements of crime to be

    guilty of a positive standard, then the exclusion of various elements of sexual crime is to be excluded from the negative side of establishing a criminal standard, combination of positive and negative, did not become established or not guilty of legal documents. And "act in accordance with

    crime constitutes a" crime of this nature will be found to obtain a more extensive intrinsic. China's Criminal Law Article XIII "but book" provision will also have the same functionality.


     Thus, the meaning of crime, constitutes the one hand, who is to make the administration of justice being brought action against acts Zuiyufeizui, this crime and the crime He set standards for the administration of justice, and thus bound the regulatory acts of the

    administration of justice, on the other by interpretation posed by crime to further deepen the understanding of the model, it has a de facto operational, and thus enrich and deepen the subject of criminal law theory in depth. When the discussion follow this logic that constitute a crime,

    the following would be essential to this issue need to be answered: For the two acts should be how to apply the model of this law constitutes a crime? (Note: Zhang Mingkai: "Criminal Law" (first volume), Law Press, 1997, p. 348-354 pp. Book of "2 to act" concept, objectivity,

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