Discussing On Decree Behavior In Criminal Law

"Decree behavior" is a criminal legal concept with strong historical accumulation and national heritage,which originated in the Pre-Qin Dynasty and flourished in Tang and Song Dynasties.It has an important influence on the development direction of criminal law system and judicial practice in contemporary China.But for now,"decree behavior" is obvious deficiencies in the legislation of criminal law,and the depth and breadth of theoretical research are also unsatisfactory.In response to this status,this paper use the methods of classified research,separate interpretation and interdisciplinary analysis to make a comprehensive and in-depth discussion on the "decree behavior" from total to specific.It is divided into five chapters except the Introduction and approximately 200,000 words.The first chapter is the introduction of the basic content and principle of "decree behavior".This part looks for the source of "decree behavior" from ancient Chinese legislation,and combines with definition of "decree behavior" at present,then puts forward the concept of "decree behavior" which refers to the act implemented according to laws(including regulations),civil servants or military orders.The types of "decree behavior" can be divided into "act according to law" and "act of executing order".Among them,the "act according to law" is further divided into the act implemented in accordance with the substantive law and the act implemented in accordance with the procedural law,while the "act of executing order" is divided into the internal orders of civil servants and soldiers.All the acts based on the implementation of laws and orders have the effect of decriminalization,while the behavior according to the law and the behavior of executing the order are different in the nature.Therefore,we should use moderated illegality monism and theory of social worthiness to elaborate the basis of the decriminalization respectively.The second chapter is a systematic review of the legislation of "decree behavior" in Chinese and foreign criminal law.Through the global investigation of "decree behavior" and on the basis of reference to other countries' regulations,it is of great practical significance to regulate "decree behavior" in Chinese criminal law.Of course,there is still room for further research on how to accurately locate "decree behavior" in the criminal law system.This paper advocates that it should be stipulated as an independent cause of decriminalization after Article 21 of the criminal law.The specific provisions can be expressed as follows:the act implemented according to other laws or superior orders shall not bear criminal responsibility,if the act committed obviously exceeds the necessary limit,it shall bear criminal responsibility,but should be mitigated or exempted from punishment.The third chapter is the implementation of the act in accordance with the substantive law.Specifically,there are many kinds of acts based on the implementation of substantive law,but the contents related to the decriminalization include:The speech and voting behaviors of deputies to the National People's Congress stipulated in the Constitution and relevant laws,the disciplinary behaviors stipulated by civil laws,the defense behaviors implemented by the police based on their duties,and a large number of licensing behaviors stipulated by administrative laws.In principle,these acts inherit the effect of decriminalization from "decree behavior".However,because they are based on different laws,the decriminalization will also be differences.At the same time,this paper also defines the conditions for the implementation of each act,otherwise it is not appropriate to decriminalize these acts.The fourth chapter is the implementation of the act in accordance with the procedural law.Specifically,According to the procedural law and related to the decriminalization,the main behaviors are investigation,arrest,seizure and execution of death penalty,among which the behavior of seizure is the most complicated.In recent years,more and more seizure is regarded as a crime,which is mainly caused by our insufficient understanding of the conditions of the seizure.According to the current law,the subject of the seizure is "any citizen",but this is not accurate,and it should be modified to "the public" or "anyone".The object of the seizure includes current offense and escaped prisoner.The current offense should be understood as "the person with criminal suspicion",at the same time,we should use the "reasonable basis" rule of American law for reference to explain the standard of escaped prisoner.As for the issue of the limit of citizens' arrest which has not been stipulated by the current law,we should make a supplementary explanation from the two aspects of the limit of conduct and the limit of result,so that the act of seizure can play a decriminalize effect positively.The fifth chapter is the implementation of executing order.Because of the different subjects,the "act of executing order" is divided into civil servant's order behavior and military's order behavior,and also there should be some differences in the discussion of their decriminalization.In the analysis of the decriminalization of civil servants' execution of orders,we should pay special attention to the provisions of Article 60 of the civil servants law,and summarize the specific conditions of decriminalization;while the solution of the decriminalization of soldiers'execution of orders depends on the formulation of relevant laws,and the timely connection with the relevant provisions of international conventions.