Research On Premise Of Cascading Criminal Constitute Theory

The direct aim of the article is to evaluate Chinese penal theory about criminal existence(the system of criminal constitute theory),and newly found a system of criminal constitute theory that ultimately vial to rational realize impartiality of conviction. Not to mince matters, the question is not novelty, but it is necessary to discuss the question. Because the author think that the demonstrate about newly found a system of Chinese criminal constitute of another scholars through example occident's criminal theory is not sufficient. So it's important to discuss the principle of criminal constitute theory. The author is not restrict the angle of view into comparing the theory preponderance of Chinese and other country, but holds the view into the guidance of the theory in the conviction of justice. Because the paper only discuss how to found a system of criminal constitute theory that ultimately vial to rational realize impartiality of conviction, and not relate to a lot of criminal constitute elements ,so the paper is called the premises study of criminal existence theory. As far as the conviction in practice, the regulation of statute law is the premise of judge, namely imputation is stipulated by law. In theory, the standard of the conviction in the law is called criminal constitute qualification, it is a 'formalized'standard. The qualification has three necessary elements in its frame: criminal conception, truth character and language. The truth character is the core of the qualification by which the law realizes the need of formalized logos. The fact in conception is the enactment mode of criminal qualification, the character delegates the conception of crime, but it is decrypted by language. But the criminal qualification has innateness bug. The author considers the conception of crime and the truth character is relation of object and tool in the expression, the both should consistent in ideal, the paper is called 'new principia of the consistent between subject and object'. But in realism, the relation of criminal conception and truth character is not consistent, we called it is 'not-balance'. The character induce 'not-integrity'of formalized criminal constitute; it concludes positive and negative ways. The former indicate that statute law cannot regulation all crime in the practice; the latter indicate statute law sometime cans regulation some 'non-crime 'behavior. This defect will threaten the basic effect of criminal law (protect society and ensure human rights).So we shall consider how to resolve this defect in practice. The writer think the theory about criminal existence that concludes criminal constitute theory have a same mission, namely provide a reliable path to conviction in practice. This is a means-lism to criminal existence in reality. Via this premise, we can find the route to meditate our traditional theory about criminal qualification. And we can find the point of view to compare three jurisprudence about criminal qualification. When we neglect the defect of formalized criminal qualification, the theory is complications, pay attention to explain formalized criminal qualification, such as criminal classicality school, Russian and Chinese. This theory's aim is to find the ways that explain law. Chinese theory provide idiographic way for judge to conviction: explain the law from four sides: main body, object, subjective and objective, then thinks the conclusion as major premise, fact as minor premise. So the formalized criminal qualification is mostly to explain law, not regard the defect of the theory. In modern times, the mainland jurisprudence try to set up a effective revising, so form a solid multianalysis way. The mainland jurisprudence criminal qualification provides a step for conviction: formal before essential, fundamental before revise, it reflect the course of conviction. As a thinking fashion, it wise judge that they shall explain law in the base of behavior, result, subject, intent, blame and review the accord between the law and truth; If the answer is yes, we can come into step of illegal judge, whether the behavior has circs of remove illegal, without reference to case-hardened orexceed law, we shall denial the illegal of behavior. If the answer is no, we shall consider whether the man's subjective is deserve condemn, so it is a solid-revise theory. From the angle of history, the theory about criminal qualification in the time of Feuerbach is complications. Then and there, the people wish to restrict judge's arbitrariness for realizing ensures human rights through formalized criminal qualification, but neglect the defect of this theory. This theory only tells the judge how to explain law. So the theory is formalized explaining. The system is the same headstream of Chinese, Germany and Japan's criminal theory. This theory is cleared up in the criminal demonstration school, but it is not disappearing, has a fatal transition: from form to solid, from the way to explain law to the way of conviction. The criminal demonstration school provides two inspire ways for classic school: First, the classic school is convinced of the defect of theory that formalized criminal qualification. Second, the classic school abandon fine formalized logos, but newly pay attention to the importance of essential standard in conviction, such as Binding's theory of criterion. New classic school set up a solid multianalysis theory of criminal qualification by Bling and Mï¹’E ï¹’Mayer on the base of criterion theory of Binding. This theory is a thinking way of conviction: First, estimate whether the constitute elements consistent with fact in form. second, revise the first conclusion on the base of essential criterion. Though the trait is not distinctness early, new classic school try to found a effective correct form to resolve those question: form separate from essential in solid. Russian criminal theory keep a formalized one, because it has a politics reflect, such as dread to law nihilism and the cognition of capitalism just tend towards corrupts. Chinese theory inherit soviet formalized explain system, in the prophase, we also not cognizant of the defect; presently, although we have cognizance of the defect of this theory, but a majority of scholars try to realize 'form identical with essential hereinto the four condition criminal theory. The writer thinks that the theory about criminal condition shall on principle of solid and revise. The formalized theory has defect that can't provide way to correct the defect for judge. Although Chinese theory about...