| In Recent years, the theory about social detriment becomes one of the focuses incriminal law, and scholars give mixed reviews about the right and wrong of socialdetriment. This paper, standing on the common view of point, elaborates the transitionof the meaning of social detriment from political attribute to law attribute by thereview of social detriment’s origin and development, in order to demonstrate thatsocial detriment has possessed normative in legal sense and became local “legallanguage”. Then, by elaborating the function of social detriment in criminallegislation and criminal justice, it further proves the practical significance of socialdetriment, which shows that social detriment can’t be easily abandoned. Finally,aiming at four elements crime constitution theory, which becomes an object of publicdenunciation recently, this paper gives advices on reform and perfection from theperspective of social detriment., that is, building a hierarchical “the quality of socialdetriment-the quantity of social detriment” constitution of crime on four elementscrime constitution and displacing the four elements crime constitution in the past.Thispaper is divided into five chapters, each part follows:The first chapter analyzes the origin and transplantation of the theory aboutsocial detriment in our country, divided into two parts, the first part discusses theorigin and development of social detriment concept in U.S.S.R, focusing on twoaspects: first, by the definition of the concept of crime in The guiding principles of theU.S.S.R criminal law(1919) and U.S.S.R Criminal Code(1922,1926,1960), we formally review the establishment and development of the concept of social detriment,according to the details of each legislation, and point out that each legislation showseach step of social detriment towards scientification and normalization; secondly,basing on the formal review and combining the history of the origin of U.S.S.R, weanalyze how the concept of social detriment can arise in U.S.S.R, the answer is thatU.S.S.R is the first socialist country in human history, in order to break with theformalistic bourgeoisie in the legal view, it’s inevitable to build up a brand-newsocialist criminal law in a essential perspective. The second part discusses thetransplantation of the theory about social detriment in China, divided into two aspects:first, the establishment and development of the theory about social detriment mainlysurround the criminal laws of1979and1997, both of them use the concept of socialdetriment, combining form and essential, which results from learning from U.S.S.R,from then on, the theory of social detriment roots in the criminal law of our countryand becomes the “nerve center”. That is also a formal review of social detriment.Secondly, we analyze the reason of the establishment of social detriment theory, thebasic reason for the transplantation is the highly similar ideology, at the same time,the abandon of the old law in1949and the national Judicial reform movement in1952-1953create the condition for the legal transplantation.The second chapter centres on the evolution of the connotation of socialdetriment, which is divided into four sections. The first section discusses the evolutionof the implication of social detriment in the Soviet union (Russia), in which the firstthing is to point out that the class attribute of law, with the actual changes in theSoviet Union’ class view and its social life, is gradually weakening, so it brings asame consequence to the class attribute of social detriment, making it graduallytransiting from an early political connotation to a legal connotation; and the next thingis to giving illustrative descriptions of those five specific perspectives—Analogies，crime constitute,the classification of the crime.etc—which are appeared subsequentlyin Russian Criminal Law, so as to support that the connotation of social detriment isgradually changing from the political connotation evolving to legal connotation forthe gradual extinction of its political connotation and the gradual increasing of legal connotation. The second section discusses the evolution of the connotation of socialdetriment in china. By the analysis of the three perspectives that whether the socialdetriment is the exclusive property of a crime, whether the social detriment is theessential feature of a crime and the abolition of analogy, we can realize the color ofclass attribute in social harmfulness is fading away, and the legal attribute eliminateup to a gradual increase. Marked by the promulgation of the penal code in1997, thetransition from the political connotation to the legal connotation has completed. Thethird section analysis mainly on the causes of evolution of the connotation of socialdetriment, which are due to the three major reasons: the retreat of political factors, theleading of thought liberation movement and the promotion of academic study of Law,of which the liberation movement, happened in1978around the discussion of thestandard of truth, has a far-reaching impact on our concept of law, including criminallaw. The fourth quarter focuses on the normalization of social detriment.The generalconclusion is that social detriment is not as terrible as the critics said, it does not havenormative. Social detriment has a complete normative by Criminal Law, but it isdifferent from the law in the sense of the micro normative, and it is an integrated andglobal macro normative with a specific behavior standardization to achieve itself,which, actually, is mainly achieved by principle of legality and restricted by thecriminal illegality. At the same time, through the overlooking of the former SovietUnion and the history of criminal law in our country, we can know that socialdetriment in Soviet Union and China has both experienced the evolution process of“Non-normative era—Semi-normative era—Normative era”, and each era has itscharacteristics and obvious landmark events.The third chapter focuses on the relationship between social detriment andcriminal legislation. This chapter is divided into three sections. The first sectionanalyses the influence of social detriment to crime, considering social detriment notonly determines the boundary between crime and non-crime, but also the boundarybetween a felony and misdemeanor.The second section analyzes the influence ofsocial detriment to punishment. It is believed social detriment not only determineswhy the penalty exists--to put the condemnation and negative evaluation manifested by the social detriment into practice, also determines how the penalty exists--withthe balance between crime and punishment. The third section analyses the relationshipbetween social detriment and proviso. The original intention of the establishment ofproviso is to shrink the scope of punishment, so proviso not only embodies the spiritof modesty of criminal law, but also becomes the legal basis for bear with minorinfractions crime. The positive significance of proviso is obvious, therefore, it shouldnot be canceled, otherwise, not only the above mentioned advantage will no longerexist, also lead to many negative effects, such as a greater dispute of the judgment ofsocial detriment, multiplication of the crime number, and chain reaction brought aboutto the other branches of law and so on.In addition, the book also analyzes therelationship between constitution of crime and the proviso and the applicable scope ofproviso, convinced that some scholars have understanding deviation on these twoissues. The book believes that there is no intersection between social detriment withinproviso and the one displayed by the constitution of crime, that is, it is mutexrelationship. Furthermore, theoretically speaking, proviso should apply to all thespecific provisions of the criminal law, rather than just some crimes.The fourth chapter focuses on the relationship between the social detriment andcriminal justice. This chapter is divided into three sections. The first sectionarguments the necessity of social detriment to criminal justice. The necessity ismainly from three aspects, the quantitative elements of crime, the need of digestioncrevices between the social detriment and criminal illegality, the need of Sentencing.The second section analyses how social detriment works in criminal justice. To beexact, in the link of conviction, in the confirmation of quantitative elements of crime,pay attention to the extent of social detriment.When there is inconsistency betweensocial detriment and criminal illegality, criminal illegality works as the main judgment.In the situation of non-crime，the action with criminal illegality and without socialdetriment is treated as non-crime. In the aspect of Sentencing, judged appropriate bymaking punishment files and extent for measurement of punishment which isestablished by legislation and overall analysis of the elements which can influence thesentencing excepting elements of constitution of crime.The last section of this chapter spends much word on analyzing the limit of the social detriment intervening intocriminal justice link emphasized by the inspiration of dispute between formalisticinterpretation and substantial interpretation which are prevalent in the field ofCriminal Law currently and makes a relatively original point which is that for theactions with verge social detriment, whether the judgment is guilty or not, the judge’sverdict should be accepted as long as it is still under the national’s forecast, if thejudge makes judgment by the principle of balance the interests and evaluates by hisconscience and intellectual. There is no standard answer to these cases about vergesocial detriment.The fifth chapter that consists of three sections focuses on the relationshipbetween the social detriment and the constitution of crime. The first section analysesone of the four constitutive requirements of a crime, namely the criminal object. Theconcept of criminal object has been controversial mainly because that it is introducedto the Chinese criminal law system through the law system of U.S.S.R, where theconcept had not been well developed yet at the time. Although being debatable thedefinition itself, it is still widely accepted and considered to has irreplaceablefunctions and value to the current Chinese criminal law system. From microcosmicaspects, criminal object is the factor that distinguishes this crime and that crime; andfrom macro aspects, criminal object enables the specific provisions of criminal law tocategorize crimes. Therefore, the views denying the rationality and the existence ofthe concept of criminal object will not be fully supported. To avoid any improper useof the immature conception, it is supposed that the aspect of criminal object shouldnot be the principal factor to define a crime. The second section firstly illustrates theframe of the three-level criminology being a theoretical foundation of the continentallaw system, and then it analyses the illegal constructive relationship based on theabove two theoretical aspects. The section concludes that the transitioning facts offormal judgments to substantive judgments revealed by the application of the twoconcepts of ‘constitutive requirements’ and ‘illegality’ comply with general cognitiveprinciples of humans, and thus the application of the theoretical issues is justified in asense, what’s more, this could be helpful in revising the theory of four elements of the planar constitution of crime. The third section puts forward the crime constitutionpattern of “the quantity of social detriment-the quality of social detriment” whichbased on the traditional four elements crime constitution pattern. The Specific retrofitscheme is as follows: firstly, retain the original four elements which we collectivelycalled the element of “the quantity of social detriment”, but there are some changesfor the content of the four elements. They are all only involving the basic attributes ofsocial detriment rather than the degree of the social detriment. The original contentwhich reflect the degree of social detriment are separated from the four elements. Thecriminal object elements are only positioning to distinguish the social detriment fromone to the other. Secondly,“the quantity of social detriment” elements shall be addedto reflect the social detriment. The elements which separate from the original elementsreflect the degree of social detriment shall be brought into the new elements.“thequantity of social detriment” elements including the content of the original criminalobject, the circumstance crime，the amount crime，legitimate reasons and so on.Thirdly, the relationship between “the quantity of social detriment” and “the quality ofsocial detriment” shall be positioned as hierarchical relationship.“The quality ofsocial detriment” elements reflect the attributes of the society detriment, but “thequantity of social detriment” elements reflect the degree of the society detriment. Thejudgment for “the quality of social detriment”, which focus on whether behaviors ownthe attribute of social detriment is just a formal judgment, on the contrast, thejudgment for the quantitative crime elements which concentrated on the degree ofsocial detriment is a substantial judgment based on “the quality of social detriment”elements. So, the relationship between “the quantity of social detriment” and “thequality of social detriment” is hierarchical. The modified crime constitution can bemore reasonable to meet the quantitative requirements for the conception of crime, toaccord with the logical thought from the formal judgment to the substantial one. In themeanwhile, it also can realize the combination of positive judgement and negativejudgement, and provide the unimpeded channel for distinguishing crime or non-crimethrough the way of observing justified act. In summary, the emergence of the term of social detriment is a historicalinevitability. As a result of dozens of year’s development in China，The term hascompleted localization evolution and become a regulated one in the field of criminallaw.Moreover, the term has a profound and far-reaching practical significance for thedevelopment of the criminal law theory and should by no means be discarded.Therefore, the current priority is to perfect the theory of social detriment inconformance with the real situation in China so that it will better serve the practice ofthe criminal justice. |
PDF Full Text Request