| This paper takes the procedural elements which have not been fully developed in the academic circle as the research object,and makes a detailed study on the basic theories of procedural elements,such as the concept connotation,functional value,system positioning,effective elements,judicial application,etc.This paper follows the basic research ideas of raising,analyzing and solving problems.The first two chapters introduce the general theory of procedural elements,including the phenomenon of procedural elements in China’s criminal law norms and German and Japanese criminal law norms,as well as the theoretical foundation and functional risks of procedural elements.The last three chapters are the system orientation,effective elements and judicial application of procedural elements.Of course,the second chapter can be regarded as the continuation,connection and part of the article,because the content of the last three chapters mainly focuses on the reasons for the functional deviation of procedural elements in the second chapter.Of course,the second chapter can be regarded as the continuation of the article,because the content of the latter three chapters mainly focuses on the reasons for the functional deviation of procedural elements in the second chapter.The first chapter is the normative investigation of procedural elements.Firstly,this chapter analyzes the procedural elements as a legislative phenomenon at home and abroad,and puts forward the procedural elements as legislative phenomena and its conceptual connotation.On this basis,we should investigate the historical changes of procedural elements,and make clear the social background of the origin of procedural elements and the normative changes of procedural elements.Finally,the procedural elements presented in the normative text are classified to meet the needs of theoretical research.The second chapter focuses on the theoretical foundation and functional risk of procedural elements.This chapter includes three aspects: first,the theoretical foundation of procedural elements.The theoretical foundation of procedural elements lies in limiting risk criminal law,controlling network crime,responding to the era of legal crime and limiting the expansion of obligatory crime.The procedural elements limit the scope of punishment of criminal law by giving the actor the order of returning to the norms of law,and limit the demand for punishment of criminal law in the era of risk society,science and technology,and legal crime.Second,the functional risk of procedural elements.Although the original intention of the establishment of procedural elements is good,it also begins to expose the tendency of deviating from the functional value,that is,it is suspected of violating the principle of legality,abusing the characterization of criminal modesty and failing to protect legal interests.Third,the reasons for the functional deviation of procedural elements.The reasons for the functional deviation of procedural elements include the uncoordinated system positioning,the nonstandard determination of effectiveness,the disunity of judicial application at the level of interpretation and the unscientific setting of norms at the level of legislation.The third chapter deals with the system orientation of procedural elements.As for the systematic orientation of procedural elements,there are at least some controversies in the academic circle,such as the theory of sentencing circumstances,the theory of objective punishment conditions,the theory of elements of crime constitution,the theory of illegal elements,the theory of responsibility elements and the theory of identification function.However,they all have some defects,such as unclear orientation of research methods,misplaced definition of research objects,and narrow limitation of research scope.The system orientation of procedural elements should adhere to the methodological position of interpretation and objectivism,take independent procedural elements as the research object,and take the procedural elements stipulated in criminal law,judicial interpretation and other normative documents as the research scope to define the system orientation of procedural elements.Among them,the procedural elements that affect sentencing play the role of “marking” the circumstances of sentencing.The prior procedural elements are illegal elements,the post procedural elements are the components of objective punishment conditions,and the negative procedural elements are the components of penalty rejection.The fourth chapter is to solve the problem of determining the effectiveness of procedural elements.The validity of procedural elements is the preissue of judicial application of procedural elements,so it is discussed separately.The effective elements of procedural elements include procedural elements and substantive elements.The procedural elements include the form,frequency and time of the notice.The substantive elements include the subject and content of the notice.However,whether the starting subject and the relative person are in equal status has an impact on the specific elements.The forms of notice are based on the principle of understanding doctrine,with the exception of arrival doctrine,but the notice between unequal subjects can only be in written form,and there is no such restriction between equal subjects;the number of notice is limited to one time unless it is clearly stipulated by law;the notice time should comply with the provisions of civil action limitation and administrative investigation limitation respectively;the notice subject between equal subjects not only includes the interests-related person also includes the legal agent or the entrusted agent,and the notice between the unequal subjects can only be implemented by the functional department in person;the content of the notice should have the legal basis and be specific and clear;in addition,the notice between the unequal subjects should specify the adverse legal consequences of non performance of obligations,but the notice between the equal subjects has no such requirement.The fifth chapter solves the dilemma of judicial application after affirming the effectiveness of procedural elements.The dilemma of judicial application of procedural elements includes the relationship between positive procedural elements and “double illegality”,the relationship between punitive procedural elements and the principle of “no more punishment for one case”,the plot concurrence of procedural elements and the judicial identification of accomplice under procedural elements.If “double illegality” is only understood as the relationship between the illegality of criminal law and the illegality of civil law and administrative law,it can not only maintain the theoretical coherence,but also effectively deal with the conflict between criminal law and civil law.Taking the principle of “no more punishment for a limited matter” as a stand choice and offsetting the punishment measures with the same attributes can properly deal with the relationship between the punitiveprocedural elements and the principle of "no more punishment for a limited matter".The concurrence of circumstances can be effectively solved under the existing theoretical framework,but how to take the procedural elements as the starting point to open up a path of crime(exemption from punishment)needs special research.If the accomplice lacks procedural elements,whether the accomplice relationship can be established depends on whether the lack of procedural elements affects the determination of the principal offender’s illegality.If not,the accomplice relationship can be established.The sixth chapter deals with the legislative perfection of procedural elements.According to the function deviation tendency of procedural elements,this paper puts forward that the legislative perfection of procedural elements should adhere to the guiding principles of adhering to the principle of a legally prescribed punishment for a specified crime,economizing on the modesty of criminal law and exerting the function of protecting legal interests.In the aspect of specific system design,we should give the victim the main status of starting procedural elements in the way of legislation,and allow the victim to start procedural elements by suing the people’s court.In terms of provisions,on the one hand,it is necessary to abolish some procedural elements in the natural crime,because the moral violation of the natural crime is obvious,and the illegality of the act is easy to be recognized by the perpetrator.The existence of procedural elements will only hinder the function of the protection of the legal interests of the criminal law;on the other hand,it is necessary to add some procedural elements of the statutory crime,because the understanding of the illegality of the statutory crime is complex,the lack of legal interest and other characteristics,so that the setting of procedural elements in the statutory crime has natural legitimacy.However,whether it is to abolish or add procedural elements,the one size fits all method is not desirable.The more secure way is to appropriately increase or decrease the procedural elements of controversial charges,so as to maintain the smooth transition of legislation. |
