On Criminal Consequence

"Crime is a sort of behavior" is a proposition generally acknowledged in criminal theory cycles both at home and abroad.But why can’t we say conversely that "behavior is crime"? The answer is very simple:not all behaviors are crimes.As to why some behaviors are crimes provided by law seems not so simple a question.But one thing is certain:a behavior will not be stipulated by law a crime without any harmful consequences done to society.The essence of crime is usually explained as that it is harmful to society by the traditional theory in our country.But a behavior cannot do any damage to society without changing the state of existence of a person or a thing.Once the state of existence of a person or a thing is changed, it means the criminal consequence happens.Criminal consequence is the basic concept and one of the most important conceptions in criminal theory.It is not exaggerated that the theory of constitution of crime cannot be clear and scientific if ambiguous recognition to criminal consequence still exists,thus,the theory of constitution of crime,as the core of the criminal theory,cannot provide a right guidance to judicial practice.It seems to the author that the whole purpose of the criminal legislature and judicature is nothing but to stop criminal consequence from happening through forbidding criminal behavior,thus to protect the legal interests.However,when we open all kinds of books and works on Criminal Law to look for the arguments about criminal consequence;when we read the articles on criminal consequence by experts and learners;what remains on our minds will always be confusions and disorders.Nearly all the basic questions of criminal consequence,such as the connotation and extension,the classification and the position and function of criminal consequence in the constitution of crime,are in debate.Indeed,academic argument is the symbol of the academic prosperity.But it either indicates that the argument is nonsense or the related criminal theory itself is immature if the result of the academic argument does not make the basic concept in criminal theory clearer but more vagarious instead.The author of this paper,without the fear of being superficial,would like to take once more risk to try to study on the problem of criminal consequence,not hoping to solve all the issues of criminal consequence but only to hope that the endeavor is not up to nothing again.There are six chapters in this paper.ChapterⅠis on the concept of criminal consequence. We say that the criminal consequence is a vagarious concept in criminal theory firstly lies in the appellation of criminal consequence.The appellation of criminal consequence is various in theories.Maybe it has something to do with the different choices of words of "consequence" articulated in Criminal Law.But the intensions and extensions of different terms on "consequence" are also different in Criminal Law.However,all kinds of concept which extension are quite different are used to refer to criminal consequence,which inevitably cause the confusion of the concept of criminal consequence itself.We should strictly distinguish between "consequence","harmful consequence","the consequence of crime" and "criminal consequence",and only "criminal consequence" is suitable.As to the concept of criminal consequence,making a comprehensive survey on the existed viewpoints from the Civil Law System countries,the former Soviet Union and China,there is no disagreement on the point that the criminal consequence is a kind of harm or damage.The disputations focus on:firstly,what is damaged by criminal behavior,the criminal object (social relationship,protected object,legal interests) or the objective? Secondly,the existence scope of criminal consequence,i.e.whether the immateriality damage and objective danger are included in the criminal consequence or not? Thirdly,as a damage of criminal consequence,is it an objective reality or an evaluation in law? The right answers to all these disputes cannot be found until the basic premise to the definition of criminal consequence is made clear.The main meaning of damage ought to be to change the state of existence of a person or a thing.No change no damage at all.Once the state of existence of a person or a thing protected by Criminal Law been changed by criminal behavior,it follows that the criminal consequence happens.Therefore,Criminal Consequence refers to the change of the state of existence of a person or a thing protected by Criminal Law caused by criminal behavior.The state caused by criminal behavior is nothing but the state that the Criminal Law prevents.Only the state that Criminal Law ultimately prevents can be called Criminal Consequence.So,neither the "dangerous consequence" nor the "subjective consequence" is criminal consequence.The dangerous consequence is just a dangerous transitional state to criminal consequence caused by criminal behavior,and the state itself is not the state that the Criminal Law ultimately prevents.And so called "subjective consequence" is not criminal consequence,either.Because it exists in the mind of a person before the behavior,and it is not objective at all.Another fact of vagueness of the concept of criminal consequence lies in the classification of criminal consequence,or,the classification of criminal consequence is the important reason for the confusion of the concept of criminal consequence in the criminal theory in our country.The definition of the connotation of criminal consequence determines the definition of the extension of criminal consequence.The classification of criminal consequence is obviously the study of the extension of criminal consequence.The mutual determination relation between the intension and extension requires we must take one another as the premise when we study anyone thereof.However,at the least study,you will find that sorts of classification on criminal consequence in criminal theory in our country are not the classification of criminal consequence at all.Most of them are about "the consequence of crime".Taking "the consequence of crime" as "criminal consequence" to classify would directly cause the vagueness of the concept of criminal consequence itself,because the consequence of crime is itself indefinite and various.To classify the criminal consequence should stick to the premise of the connotation of criminal consequence,thus,the classification of criminal consequence can be included in the extension thereof.Therefore,most of the classification of criminal consequence,such as "material consequence and nonmaterial consequence","constitutional consequence and non-constitutional consequence","direct consequence and indirect consequence",and so on,are untenable,or even tenable but meaningless.If there is the necessity to classify the criminal consequence,we can classify the criminal consequence as "logic consequence and factual consequence","establish consequence and pattern consequence","single consequence and complex consequence".And all the above is the main content of the second chapter.ChapterⅢis mainly on the relation between the criminal consequence and the constitution of crime,especially the relation between the criminal and each element of the constitution of crime.As the standard and criterion of conviction of,the constitution is neither a kind of pure theoretical framework nor direct legal articulation,but a kind of theoretical tool for judiciary to convict crimes which is summarized from the norms of Criminal Law.It is both theoretical and legal.The constitution of crime must have the function to classify kinds of crimes,or we cannot judge what behavior constitutes what crime.The constitution of crime only exists in the interior of a criminal behavior,and is a theory originating from the analyses of the interior of criminal behavior.So,the whole of crime is bigger than the constitution of crime.As the legal structure which reflects the special essence of kinds of crimes,the constitution of crime itself is not an empty framework,but consists of several concrete elements.The elements of the constitution of crime are not equal to the whole phenomenon of crime;and the constitution of crime is not equal to the criminal behavior itself either.The elements of the constitution of crime are not the factual subject,object and subjective aspects of criminal behavior,but the features reflecting the special essence of concrete crimes included in the objective aspects,the subject,and the subjective aspects of a crime.For the criminal object is abstract and cannot be testified by evidence,it cannot be the element of the constitution of crime.The object requirement(sate of the existence of a person or a thing which reflects the social relationship protected by Criminal Law) is the element of the constitution of crime instead.Essentially,criminal objective which means the special state protected by Criminal Law is the object requirement of the constitution of crime.The social relationship protected by Criminal Law is the value object,which should be studied in the categories of the concept of crime.Criminal objective is the form of criminal object,and criminal object is the essence of criminal objective.Once the state of existence of a person or a thing protected by Criminal Law is changed by criminal behavior,the criminal consequence produced,and simultaneously,the criminal object is infringed inevitably.Criminal consequence does not belong to objective requirements of crime,and should not be studied in it,but should be studied in the object requirements of crime,because criminal consequence is the change of the state of existence of a person or a thing protected by Criminal Law that caused by criminal behavior.The objective requirements of crime refer to the objective nature of criminal behavior,i.e.the nature exists in the criminal behavior that can reflect the special essence from the objective aspects.For instance,the objective requirement of homicide is the nature of causing death that exists in the behavior of killing.In another words,the objective requirement of crime is the nature of causing criminal consequence of criminal behavior.The subjective requirement of crime refers to the nature existing in criminal behavior that reflects the special essence of concrete crime from the angle of the subject of crime,which generally includes the criminal responsibility age and the criminal responsibility capacity,and sometimes the status of the subject.Because both the criminal responsibility age and the special status of the subject are to explain the criminal responsibility capacity,the criminal responsibility capacity is the core of the subjective requirement.Criminal responsibility capacity is the capacity of the actor to recognize and control the conduct of his own,and the key of the capacity of recognize and control is the capacity of the conductor to recognize and control the consequence of his own conduct.Therefore,the subjective requirement cannot be constructed without criminal consequence.Criminal consequence is objective in nature;it is objective existence independent to the will of human being.But whether a consequence caused by a conduct is criminal consequence or not cannot be judged without considering the content of the fault of the conductor.So,there exists intimate relation between the criminal consequence and the subjective requirements of the constitution of crime.Either intent or negligence,the key of the contents of recognition(ought to recognize) or control(ought to control) by the conductor is criminal consequence.The negligence is especially decided by the attitude of the conductor to the criminal consequence.The relation between the criminal purpose and the criminal consequence is that the criminal purpose is the subjective "criminal consequence",and the criminal consequence is the reality of criminal purpose,they are united. And the relation between criminal motive and criminal consequence is that both of them reflect the needs of the conductor,and they are in the same direction in the direct intentional crime.The criminal motive stems from the needs,and the criminal consequence meets with the needs.There is a very close relation between criminal behavior and criminal consequence. Criminal consequence does not exist without criminal behavior;and a conduct would not be articulated by Criminal Law a crime if it is impossible to produce criminal consequence. Criminal behavior is the cause of criminal consequence;and criminal consequence is the end and of criminal behavior.Criminal consequence is part of criminal behavior,and is included in the course of criminal behavior.So,in this sense,criminal consequence and criminal behavior are mutually defined.Logically,every criminal behavior has its criminal consequence,but all logic consequences of crimes cannot turn into factual consequence in reality.Since most of the direct intentional crimes do not demand criminal consequence; criminal consequence is not the common element of constitution of crime,but selected one thereof.ChapterⅣis mainly about the relation between criminal consequence and cease patterns of crime.The cease pattern of crime can be divided into two categories:the accomplishment of crime and non-accomplishment of crime(Preparation for a Crime,Criminal Attempt and Discontinuation of a crime).A theoretical premise must be made clear before we study the cease patterns of crime:who should judge whether a crime is accomplished or not,from the angle of legislature or the conductor? This paper observes that:when a criminal behavior is accomplished is completely a legislative selection.Nevertheless,the legislative selection must base on the consequence that the conduct usually causes.The whole purpose of Criminal Law is nothing but to prevent the occurrence of criminal consequence to protect legal interests. Therefore,the standard of the accomplishment of a conduct in legislature always is the change of the state of the existence of a person or a thing protected by Criminal Law caused by criminal behavior(the occurrence of criminal consequence),i.e.the occurrence of the essential damage to criminal object,although the consequence may not be in accordance with the terminal state the conductor hopes.The standard of the accomplishment of crime is in debate because it is not directly provided in Criminal Law in our country.As a well-rounded theory of standard of accomplishment of crime,the "elements of crime constitution requirements theory" has its advantages.Based on the theory of accomplishment model of crime in specific provisions of criminal law,it can include all types of accomplishment of crimes.But there exists unconquerable contradictions in this well-rounded theory:it can not resolve the problem of the behavior that the criminal eliminate the dangerous state initiatively after the accomplishment of perilous crime;the arguments on the standard of concrete crimes indicate that the criteria of accomplishment of crime is still not resolved by the well-rounded theory;together with the queries to it,all bring the well-rounded theory into embarrassment. The specific provisions of criminal law are not necessarily the accomplishment model for all crimes.The perilous crime is no more than the criminal attempt of the corresponding factual damaging crime;and the movement crime the preparation crime of corresponding factual damaging crime.It is practicable both in theory and practice if the criminal result is understood as the alteration of the state of existence of person or thing which is protected by Criminal Law,and acted for the criteria of accomplishment of crime.Since the common understanding of the meaning of criminal purpose has not been reached due to its subjectivity, "the realization of criminal purpose theory" is not suitable for the criteria of accomplishment of crime in our country at present.There are two key elements to identify criminal attempt: "commencement of crime enforcement" and "no prevail",both of them have close relation with criminal consequence.From the angle of criminal consequence,the "commencement of crime enforcement" has two key requirements:subjectively,the conductor aims at the criminal consequence;objectively,the conductor starts to control the conditions that can directly cause the criminal consequence happen."No prevail" of crime can only be constructed as the non-occurrence of criminal consequence that Law demands,and cannot be constructed subjectively.The only objective mark of the difference between the accomplishment of crime and discontinuation of a crime is criminal consequence,in other words,once the criminal consequence happened,there’s no leeway for discontinuation of a crime.Preparation for a crime has no direct relation with criminal consequence,since neither "preparing for tools" nor "making conditions" can directly cause criminal consequence itself. Therefore,the preparation for a crime is the furthest from criminal consequence among all non-accomplishment patterns of crime.In short,the premise of the non-accomplishment patterns of crime is that criminal behavior has not caused criminal consequence.So we can say that accomplishment of crime is the behavior caused criminal consequence.Thus it can be seen that the criminal consequence are closely related to cease patterns of crime.ChapterⅤobserves the relation between criminal consequence and patterns of quantity of crime.There exist several theories of the criterion for the judgment of the quantity of crime. This paper argues that the relation between the theories of the criterion for the judgment of the quantity of crime is not exclusive to one another,but united.The only difference between them is the angle they take.This paper argues that criminal consequence be the criterion for the judgment of the quantity of crime,because it is easier to understand,and less ease to get in trouble than other criterions.In this chapter,aggravated crime,imaginary crimes,continual crimes,and transferred crime are selected to be studied as to the relationship between the criminal consequence and each of them.Aggravated crime is a kind of explaining theory of the Law,and should be based on the legal phenomenon of aggravated penalty to the aggravated consequence caused by basic criminal behavior.The aggravated consequence of aggravated crime is out of the logic consequence of basic criminal behavior,and so different from the basic consequence essentially.It is the explicitly defined aggravated punishment circumstance in nature.There is no criminal attempt pattern of aggravated crime,because it is based on the occurrence of aggravated consequence.The consequences of imaginary crimes can be the same or different in nature,and the "one conduct" of imaginary crimes is one natural conduct but several legal conducts.Imaginary crimes are several essential crimes and should be punished combined.Consequences of continual crimes can be the same or different in nature.Continual crimes are several crimes,and should be punished on the principle of combined punishment for several crimes of course.And the concept of continual crimes is valueless.The reason for the legislature of transferred crime lies in that the whole nature of the crime transferred because of the occurrence of the criminal consequence which cannot be included in the basic crime during the course of crime.Each requisite of transferred crime is closely related to criminal consequence.The last chapter observes on the relation between criminal consequence and objective punishment condition in Civil Law System from the point of the articulation of Article129 in Criminal Act.Whether there exists causality between "failing to report in time" and "causing serous consequence" after losing gun? It seems that the answer is not,therefore,some scholars argue that we should introduce objective punishment condition in Civil Law System to solve this problem.But objective punishment condition is in debate even in Civil Law System.Objective punishment condition has nothing to intention or negligence according to corresponding criminal theory in Civil Law System.It is obviously contradictory to the principle of guilty responsibility if it holds that "causing serious consequence" has nothing to with intention or negligence.The coupling and plane structure of the constitution of crime of our country leaves no room for the objective punishment condition.Factually,"causing serious consequence" of crime of losing gun and failing to report in time,is the criminal result thereof,which cannot be explained by objective punishment condition in civil law system but can be entirely resolved by criminal consequence theory.This paper argues that objective punishment condition in civil law system is anything but profound theory which can be explained by the corresponding crime theory of our country,and most of them are criminal consequences indeed.