Research On Theory And Practice Of The Twice Lawbreaking Properties

The twice lawbreaking theory provides us a new perspective to solve the problem not only on directing Criminal legislation but also on guiding a number of complex and difficult case in criminal judicial practice. And also provide a theoretical support of the civil liability for the defendant in the criminal and subsidiary civil action. However,research on the the twice lawbreaking theory is not sufficient in China. For example, there is little research on the theory of the relationship between theory and crime constitute, relationship with restraining criminal law, and what is the role of the theory in the relationship between criminal law and other laws. And some problems are not caused by the attention of scholars. Lack of theoretical research lead to the application of theory, especially the standards of this theory applicated in criminal justice practice is different. Which not only affect the science of the entire legal system, also violate the basic principles of criminal law. This paper through combing the theory about the twice lawbreaking, in order to forward a sound proposal about systematic, logical, scientific and other aspects. So that this theory can be better serve our country's criminal legislation and judicial.This dissertation, is divided into four parts altogether, and has about 4.5 million words except the introduction and epilogue. The first chapter is combing the theory about the twice lawbreaking, discussing the basic content, the origin and foundation of the theory. And on this basis to discuss the shortage and improvement of the theory. Article believes that we should be clarified the status of criminal law in the whole legal system and distinguish two levels of criminal legislation and criminal justice. And on this basis to understand the meaning of this theory. Although this theory has profound social ethics, legal and socio-economic basis, the systematic, logical, scientific and other aspects need to be improved. Therefore, this article forward a sound proposal from the definition of pre-criminal law,the relationship between criminal law and pre-criminal law, and the twice lawbreaking theory and other theories.The second chapter focus on the application of the twice lawbreaking theory in criminal legislation. The article points out that, since our founding especially the national conditions since the reform and opening up, resulting in the existence of inconsistent guidelines, ahead of legislation and many other problems in criminal law legislation in China. The twice lawbreaking theory asked legislators, On the one hand, must examine whether such acts against the front of the appropriate civil, administrative, economic and other laws and regulations to adjust, and if not, it should first work out the front of the appropriate laws and regulations, rather than directly to consider such acts against crime. On the other hand, if the harmful act has been adjusted by pre-criminal law, then to examine if the pre-criminal laws were effective regulation, that makes strictly enforced and effective use of pre-criminal laws as using penalty's prerequisite. Otherwise, the penalty cannot be cooperated with the sanctions of pre-sanctions law, which will eventually undermine the authority and seriousness of the criminal law.Chapter III discuss systematically on the application of the twice lawbreaking theory in criminal justice. Most scholars believe that the need and significance of this theory is only in the criminal legislation. And because of lacking of maneuverability in criminal justice, it cannot have a guidance role of the criminal Practice. The article points out that, the Reason why the theory cannot be uniformly applicated in criminal justice practice, and even frequently be interrogated, is largely due to the study and understanding about the theory and practice of criminal law are not sufficient. However, this does not become a question of the theory applied in the criminal justice. The correct approach should be perfect in theory, and then analyzes the applicable methods,scope and procedures of the theory in criminal justice practice. In order to provide a process of interpretation and a analytical tool to think of criminal law and pre-criminal law in dealing with complex and difficult criminal cases.