Research On Some Problems Of Theory Of Constitution Of Crime In China

Constitution of crime in Chinese science of criminal law is the core of Chinese science of criminal law and is the legal standard to affirm the establishment of a crime. Chinese theory of constitution of crime and even the whole theory of science of criminal law are transplanted from the former Soviet Union and the theory of constitution of crime in the former Soviet Union which is the inherit and modification of classical school of the continental law system have too many political function and function social security and relatively weak security of individual rights. In the present phase, with the construction of the country under the rule of law in China and strengthening of awareness of individual rights, it is necessary to inspect the Chinese present theory of constitution of crime. Chinese constitution of crime is the plane and coupling form and during the affirmation of crime as long as there are these four elements, it is affirmed as a crime. Finish form judgment and value judgment at the same time in terms of fact. However, there is no judgment content of substantiality in four elements in constitution of crime and there is also no content concerning the origin of criminality and origin of legalization. This makes Chinese constitution of crime only have the function of incrimination and no function of expelling from crimination, which is to the disadvantage of realizing the criminal law's function of guaranteeing individual rights. So it is necessary to perfect the theory of constitution of crime in China. The author has tried to compare Chinese theory of constitution of crime with theory of crime in the continental law system and theory of elements of establishing crime in Anglo-American legal system through exploring the developmental process of theory of constitution of crime and find the similarities and differences between Chinese theory of constitution of crime and the above two theories and shortcomings of Chinese theory of constitution of crime. Chinese present theory of constitution of crime excludes the contents of legalized incident and anticipated possibility including crime's social harmfulness, justifiable defense, urgent escape and others. In China social harmfulness is not the evaluation content of theory of constitution of crime which diminishes the status of constitution of crime as the sole standard to affirm the establishment of crime. Justifiable defense and urgent escape are not regulated in Chinese constitution of crime and they cannot realize the possibility of expelling crime in the scope of constitution of crime. So they only have the function of crimination but cannot dynamically reflect the process of crimination. They are to the disadvantage of providing defense for innocence and function of assurance of human rights with defendant. At the same time there exist problems value preposition and illogic in the present theory of constitution of crime. Through analysis of the drawbacks of present theory of constitution of crime and combination with Chinese local resources, the author has finally put forward the initial assumption of reconstructing Chinese theory of constitution of crime.