| In the era of statutory crime,many problems in criminal law should highlight the characteristics of the times.In judicial practice,there are many cases,such as Wang Lijun’s illegal purchase of corn,Zhao Chunhua’s case of gun involvement and many other hot social cases,which objectively create an opportunity to think about the problem of crime in the legal offense.The empirical analysis results show that compared with the natural crime,it is more difficult to commit the crime legally in the trial stage.As a result,the function of criminal law tends to be alienated,the principle of modesty of criminal law is deviated,and the judgment of individual cases deviates from public recognition.Reflecting on China’s existing crime system,China’s current crime system mainly includes the concept of crime,the exclusion of criminal causes(self-defense,emergency avoidance),but the book out of crime,the exclusion of criminal nature from the crime is not targeted for the statutory crime,but the book and the concept of crime can not reflect the characteristics of statutory crime.At the same time,compared with the crime system under the stratum theory,the two pillars of illegality and responsibility provide the system foundation for the crime while confirming the establishment of the crime.The system can be expanded gradually by negating the illegality and responsibility.Therefore,it can be considered that China’s crime system is seriously lacking in systematicness and pertinence,and the mechanism of statutory offense is not smooth,which can not meet the requirements of the era of statutory crime In reality,it is necessary to provide adequate protection for the crimes committed by law.The judgment standard of statutory crime and natural crime should avoid subjective judgment and adopt objective judgment standard.At the same time,try to avoid the interference of "ethics" and explore the basis of incrimination from the perspective of the nature of crime.We can’t take abstract danger to legal interest as the standard to identify statutory crime.We should use "whether there is any connection with administrative law" in form and "double illegality" in essence.Of course,it should be recognized that the distinction between statutory crime and natural crime is relative,because we must recognize the natural criminalization of statutory crime.Unless otherwise specified,the legal offense and the administrative offense should be interpreted as synonyms.On the one hand,the distinction between administrative crime and criminal offense is evolved on the basis of the distinction between natural crime and statutory crime,which has historical inheritance.On the other hand,statutory crime reveals the essential characteristics of this kind of crime.It seems that the concept of administrative crime is more inclined to the realization of administrative purpose and the violation of administrative law.With the expansion of administrative power,administration has touched all aspects of life,and the criminal law provisions regulating the fields of civil and commercial affairs,education,culture,health,environment and so on are gradually increasing and occupying a dominant position.Therefore,it is also appropriate to replace legal crimes with administrative crimes."Crime" refers to the judicial crime,substantive crime,no distinction between the crime according to law or according to reason,and the premise is not that the actor constitutes a crime.Therefore,the concept of crime in this paper is limited and expansive.In fact,the judicial crime and substantive crime have a narrow understanding and limitation of the crime itself.However,the understanding that does not distinguish crime according to law or reason,and does not take the constitution of crime as the premise,makes the concept of "crime out" expansively interpreted,which makes its connotation inclusive.Therefore,we should restate the concept of the modesty of criminal law,take the modesty of criminal law as the guiding concept of statutory crime,confirm that the theoretical basis of statutory crime is non beneficial infringement,social equivalence,impossibility of expectation and non punishment,take the concept of crime and the uniqueness of statutory crime as the logical main line,and build a complete targeted law on the basis of adhering to the principle of universality and particularity of crime The system of deterrence from conviction is as follows: "the obstruction of criminal illegality-the obstruction of social harmfulness-should be restrained by penalty".The criminal illegality of statutory offense has the administrative subordination,which means that the administrative act can have an impact on the establishment of the crime.Administrative provisions play an important role in the establishment of a crime,which lays the foundation for the administrative illegality of behavior.If the administrative provisions themselves are not qualified,no matter what the contents of the administrative provisions are,they should be excluded from application,so that the behavior does not constitute administrative illegality,and naturally it is not criminal illegality.There are two kinds of inapplicability of administrative provisions: first,administrative provisions are beyond the scope.The article 96 of the criminal law should be brought into full play for the blank constitutive elements that violate the state provisions.If the administrative provisions exceed the scope of article 96 of the criminal law,it should be considered inappropriate.The content of administrative regulations is very complex for the blank elements that violate the state regulations.We should prevent the lower law from violating the higher law.Based on the jurisprudence that the superior law is superior to the inferior law,the inferior law should be considered as lacking of suitability.Second,changes in the content of administrative provisions.The change of administrative provisions does not necessarily show the effect of criminal law.However,based on the variability of statutory crime,we should still examine the pre administrative provisions from the perspective of development,so as to avoid falling into rigid provisions.Therefore,in the change of administrative regulations,it is inevitable to face the problem of the choice and application of the old law and the new law.In this regard,the principle of "from the old to the light" should be applied in principle.When the new law is selected as a prepositive administrative provision,the old law lacks the suitability and cannot be used as the basis for determining the administrative illegality.On the basis of discussing whether the existence of administrative provisions is qualified,once the administrative provisions are confirmed to be qualified,then the issue of transition between administrative illegality and criminal illegality will be discussed.There are two problems to be dealt with in the value orientation: first,whether the administrative illegality is equal to the criminal illegality,in short,the constituent elements need to be understood in the same way as the administrative provisions or be understood differently based on the independence of the criminal law,which in fact rises to the case of using the constitutive elements to commit a crime.Second,based on the requirements of the unity of law order,if it is directly affirmed as a legal act in administrative law,it is naturally impossible to have criminal illegality.Social harmfulness is mainly from the perspective of legal interest infringement to investigate the legal interest relevance of statutory offense.Since the legal interest protected by statutory offense is collective legal interest,and the protection of collective legal interest is mainly for the protection of individual legal interest,we should grasp the relevance of collective legal interest from the perspective of reductionism.First of all,if the behavior can not be related to the collective legal interest,the behavior does not have the legal interest infringement,so we should prevent the establishment of social harmfulness.In fact,social harmfulness hinders the discussion of whether there is the infringement of behavioral legal interests.Secondly,not all collective legal interests can be reduced to individual legal interests,so we should consider other channels of crime.If the behavior has the legal interest infringement,but has not reached the considerable degree,we should consider the application space of the proviso clause.It can be realized that the circumstances are obviously minor and the harm is not great.Finally,the application of the principle of interest measurement should be taken into consideration if the behavior is of infringement of legal interests or has reached a certain degree or has the requirement of "quantity".The characteristic of the statutory offense is that it has low ethical censure and often leads to wrong understanding of illegality.The criminal nature of the act should be ruled out when the actor lacks the possibility of knowing the illegality.The content of punishable punishment is rich.In this regard,the wrong understanding of illegality is the main reason for the crime.However,in addition to the wrong understanding of illegality,we need to pay attention to two special cases of crime: one is the crime of administrative punishment.Second,the criminal policy is guilty.It should be confirmed that the inappropriate administrative provisions,specific administrative acts,lack of relevance of legal interests,and wrong understanding of illegality should be regarded as the causes of statutory crime.In order to realize the organic unity of the legality and rationality of the judgment in the legal offense,it provides the necessary theoretical support and institutional support for the judiciary to construct the frame structure of the statutory offense in advance.First of all,the blank constitutive elements are often used in the legislation,which is inevitable.Although it does not violate the principle of legally prescribed punishment for a crime,it objectively leads to the substantive tendency of the criminal law of administrative power.Therefore,we should not give priority to the "constitutive elements of crime" in the crime,but should recognize the inappropriate administrative provisions as the cause of the crime.The judgment of the suitability of administrative provisions should be carried out from two aspects: the static legal rank and the dynamic change of administrative provisions.We should not emphasize the independence of criminal law too much,and the monism of moderation is more acceptable.We should make relative judgment on the basis of the unity of law order.Therefore,the same term should be understood in principle,and only in exceptional cases can we have different understanding.Secondly,the specific administrative act has the function of making a crime.The influence of the specific administrative act on the establishment of a crime has both substantive and procedural significance.In particular,the criminal law should recognize the function of the administrative license,which usually exists as a negative element or as a reason to stop illegal activities.In principle,the criminal law should respect the relevant provisions of the administrative law and further discuss the issue of legitimacy under the premise of the existence of administrative license.Whether the defective administrative license can achieve the crime should be judged according to the degree of defect and the type of license(control license and special license),and the ultimate substantive standard is "the actual danger caused by improper behavior".In principle,the form examination should be carried out to the administration,only when there is doubt or hinders the realization of the substantive justice of criminal law,the substantive review should be carried out.At the same time,we should pay attention to the practical problems in other specific administrative acts.Thirdly,from the perspective of legal interest theory,statutory offense is not only a violation of order,but also a violation of legal interest protected by criminal law.The legal interest protected by legal offense is collective legal interest.It is necessary and effective for risk society to protect collective legal interest according to the needs of social development,but its abstract nature objectively increases the risk of conviction.Therefore,we should adopt the strategy of concrete collective legal interest to transform collective legal interest into individual legal interest so as to realize the relevance of legal interest.Of course,reductionism is not a perfect theory to solve the abstract collective legal interest.When the collective legal interest can not be reduced to individual legal interest,we should consider the possibility of other ways of committing a crime in addition to the theory of legal interest.The double preposition of the abstract dangerous crime type of statutory offense leads to the rarity of legal interest and the risk of incrimination.In this regard,it is not a proper strategy to allow the disprovement of danger and the use of proviso clause,so we should introduce the judgment of the specific risk of behavior.Thirdly,the wrong understanding of illegality should be the cause of the crime under the specific circumstances.The theory of cognition of illegality has dual functions of carrying out the responsibility doctrine and realizing the necessity of prevention.At present,the empirical analysis results show that the understanding of illegality still occupies a dominant position in judicial practice.Under the loosening of the principle of presumption of knowing the law,at most,the impact on sentencing is recognized,and the distinction between crime and non crime is not touched.In other words,the implementation of the principle of responsibility is weak.In this regard,we should re-examine the theory of distinction.The theory of distinction should be regarded as the transitional theory in the transformation from the theory of illegality to the theory of necessity.In the future,the understanding of illegality will be the first to open up the gap of crime in the statutory crime.China should adhere to the gradual localization path of illegality cognition theory: "don’t say-discretionary sentencing circumstances-statutory sentencing circumstances-statutory crime causes-necessary theory(all types of crime causes)".In the future,we should gradually promote the development of illegality cognition theory from diversity to unity,and strengthen the research on the criminalization of illegal cognition errors in statutory crimes.The research on the mechanism of legal offense is of great significance for us to reflect on our country’s crime system,to promote the development of the theory of statutory crime,and to construct the system of legal offense.In addition,it is also of great significance to unblock the channels of committing crimes according to law,broaden the paths of crimes committed by law,and realize the public recognition of judgments in the era of statutory crimes. |
