On The Criminal Personality In Criminal Law

The study on any theory in the criminal law inevitably goes to the study on the relations between the subjectivity and the objectivity, and between the rules and facts, so there is no exception to the study on the personality in criminal law. However, the theory of the personality in criminal law is based on the concept of the objectification of criminal law and is a demonstration and deepening to the precision of criminal law. The objectification of criminal law refers to the specification and precision to the study on the relevant contents of the constitution of a crime, criminal liability, and criminal sanctions.The contents of the objectification of criminal law is based on the objective aspects of acts, including the objectification of subjective proof, the objectification of the measuring criminal liability, and the objectification of the application of penalty. The precision of criminal law corresponds to the objectification of criminal law. It is the inevitable result of the logical deduction and the detailed classification to the objectification of criminal law. The precision of criminal law refers to the study methods of criminal law and the study content in the circle of facts and rules must be clear and have detailed classifications, and its content must have provability. The precision of criminal law is not absolutely but relatively clear. Carrying the missions of seeking the objectification of criminal law and the precision of criminal law for the criminal law of acts and criminal law of offenders, the study on the personality in criminal law is wandering between the subjectivity and the objectivity to seek an objectified path. Currently, the academia in criminal law has reached a consensus that the personality in criminal law is able to affect the sentencing through circumstances. However, it is still controversial among scholars as to whether the personality is able to affect the sentencing and how it affects the sentencing. The biggest challenge for the traditional four-element theory in China is the value evaluation to the subjective vicious and the anti-society that attracts few concerns, or is the difficulty in finding an element to prove the subjective vicious and anti-society reasonably of an offender. Due to this difficulty, the criminal law has to seek an exit on the subjective issues from the compromise of the objectivism. Therefore, how to clarify the relationship between the personality in criminal law and the construction of a crime becomes the powerhouse for the former to enter into the conviction circle among various theories. However, the precondition to solve the relationship between the personality in criminal law and the conviction is to make the personality in criminal law more specific and empirical. The construction of the investigation system to the personality in criminal law has become an "Archimedean point" for the personality in criminal law to break the limitations to the conviction. This paper, in compliance with the thinking from the abstract theory to practical judgment to the specific theoretical study, combines the theories in the disciplines of philosophy, sociology, psychology and others to construct the relevant theory for the personality in criminal law.Apart from introduction, this paper has four chapters:Chapter ?:The concept of personality in criminal lawPersonality is a multi-concept system. This part mainly starts from some relevant concepts, compares the aspects of personality in philosophy, psychology, civil law and other areas, and generalizes abstractly the definition of personality in criminal law. In terms of the relationships between personality and subjective vicious, and personal danger, the subjective vicious and personal danger are elaboration to the nature of criminal liability while personality is a part of content to liability. The relationship between personality and subjective vicious and personal danger is the relationship between the specific content and the abstract properties. The substantial content of subjective vicious and personal danger is demonstrated and measured through personality. In contrast, the attribute to the evaluation of personality is demonstrated through the personal danger and subjective vicious, and the specific criminal sanctions are determined on the basis of the subjective vicious and personal danger reflected from personality.Chapter ?:The formation and construction of the personality theory in criminal law The study on the personality in criminal law firstly is built on the basis of the theory of the act liability formed by the combination of criminal law of acts and offenders. It is a further and more specific step to explore the acts and offenders in criminal law. With the development of the theory to the criminal laws of acts and offenders, the objectification of criminal law and the precision of criminal law have become the cornerstone of the construction of the content to the personality in criminal law. The personality in criminal law demonstrates the integrity and uniqueness of its system through the theory of personality behavior, the theory of personality liability, and the concepts of personality sentencing. Although there are various critical views on personality in criminal law in academia, they have reached a consensus to the objective existence of personality, the generalization to the identification of liability, and the rationalization of the execution to the penalty, which is the premise to further carry on in-depth study on the personality in criminal law.Chapter ?:The investigation system of the personality in criminal lawThe investigation system of the personality in criminal law is an agency for the personality in criminal law to demonstrate in specific forms, and is a fundamental support to realize that personality. The healthy operation of this system is not only a symbol of the perfection of criminal procedures, but also a key to promote the reformation of the personality in criminal law in the status in convicting and sentencing. This part carries on study on the investigation system of the personality in criminal law in four sections. Section 1 clarifies the relevant concepts of the investigation system of the personality in criminal law from the levels of regulation, execution, and system respectively around five kinds of confusing concepts, including personality investigation, the report of personality investigation, the volumes of personality investigation, the survey report of personality, the investigation system of personality. In terms of the personality investigation and the attributes of its report, the factual element to the personality investigation is a reflection to the facts of an offender's case, and should belong to criminal evidence. However, the report of personality investigation belongs to expert evidence. Meanwhile, the current evidence system should be reformed to regard the character evidence as a part of this system when the traditional classification of evidence could not satisfy the factual element of the personality investigation. Second 2 presents that the substance of personality investigation,includes entity and the procedural. Section 3 studies the necessity of personality investigation from the aspect of the attributive value. Section 4 points out that the investigation system of personality in criminal law should be perfected from the level of regulation as to the current declaratory issues of the existence of the social investigation system of personality in our country. The investigation content of the system should strictly focus on whether it affects the liability to expand, and exclude any irrelevant moral characters to the personality in criminal law to avoid endless and fruitless personality investigation. It can be seen from the content construction of foreign personality investigation system that it is a massive social project. It is not a task that the judiciary can complete independently and that a criminal law can address. It requires the support of psychology, pedagogy and other disciplines, in particular the support of other social bodies.Chapter IV The application of the personality in criminal law to the conviction.In the four-element theory of the constitution of a crime, the criminal liability is demonstrated through the objective acts and further turned into the elements of the subject and the subjective. Therefore, to rationalize the imputation of the offender is to rationalize the conviction of the offender. The concept of conviction herewith should be comprehensively understood, that is, the judiciary determines whether a conduct amount to a crime and which crime it constitutes to in accordance with the relevant rules in criminal procedural law and the basic principles in criminal law on the basis of the extent of the subjective vicious in personality and the objective acts. The realization of rationalizing the imputation of the offender depends on the extent of subjective vicious of the subject reflected or proved from the personality.Based on the concept that the basis of criminal liability is the corrected theory of subjective vicious, the personality in criminal law is a factual facet to the subjective vicious, and is the substantial content and provable element to the element of the subject and the subjective. The personality is turned into the conviction by affecting the liability, cognitive ability and the will of the offender, and further through the elements of the subject and the subjective. The personality affects whether the conduct of a suspect amounts to a crime, but when the vicious reflected through the personality of the criminal is relative serious, the theory normative responsibility should be strictly followed. Namely, only when the types of the conviction or the types of aggregated responsibility clarified by laws, the personality of the suspect can be taken into account to convict. If the law is unclear on that respect, the personality of the suspect should not be regarded as a ground to aggregate the penalty. The personality in criminal law outside of the scope of the regulation should not be regarded as an element to convict a person.Chapter V The application of the personality in criminal law to sentencing; When a judge is sentencing, the judge should start with the comprehension of sentencing, not only consider the objective aspects of the act but also the subjective aspects of the offender. The individualization of sentencing is a further step to the comprehension of sentencing, and is a way out for getting ride of the dilemma that the sentencing in our country has not fully achieved comprehension yet. The individualization of sentencing mainly reflects the lack of subjective aspects of the offender in the comprehension of sentencing in its narrow sense, and it is the embodiment of personal danger. The personal danger of the offender is demonstrated through the degree of subjective vicious and other political contents. Due to the abstraction and ambiguity of the personal danger, the content of personal danger at the current stage should focus primarily on the degree of subjective vicious, supplemented by the political contents. In terms of the factual factors that are able to affect the subjective vicious of the offender or affect the subjective knowledge or control, the court should regard those factual factors as the circumstances in sentencing without any clear legal provisions. In judicial practice, it is desired that timely treating those discretionary circumstances frequently affecting the personal danger as the statutory circumstances by the way of typing. The development of the personality in criminal law in sentencing should be an improvement to the treatment measures for the punishment, that is, it should be continuously innovative to become a bridge linked to the safeguard of human rights in the punishment, including developing the security measures system, but keeping the basic kind of punishment unchanged...