On Interpreting Criminal Capacity

Criminal law is norms of conduct regulating crimes and implementing penalty. The subject of crime is a person (including a natural person, a legal person or a unit, here only refers to a natural person), who is also the bearer of criminal liability for legal consequences and the object upon which criminal punishment is imposed. But not all acts by any person can be identified as crime nor can all be punished for committing a crime. Then, what kind of person can be regulated by criminal law? What kind of person is able to bear criminal liability? What kind of person can be punished while committing a crime according to criminal law? And to what kind of person can criminal penalty achieve the intended effect? All these questions can only be answered by interpreting what exactly criminal capacity is.The whole thesis is about 4,8000 words and its main body consists of four parts excluding introduction and conclusion.Part one is the introduction to the basic theory of criminal capacity. It discusses that criminal capacity should be the unity of the criminal ability and punishment adaptability of the actor and that the foundation for their unity is that the actor with relatively free will has the ability to recognize and control his own behavior, in other words, the actor has subjective initiative. Criminal capacity revolves around the actor's ability to recognize and control his own behavior, the actor should recognize the natural characters (objective attribute) and social significance (social harm) of his own behavior, not necessarily being conscious that his conduct is against criminal rules. The actor has criminal capacity only when he has the ability to both recognize and control his own conduct, and only based on which, can the subjective factors of cognition and will of crime be formed, that is, the subjective elements of crime are formed. It should be clear that the analysis of the position of criminal capacity in criminal law should be undertaken in accordance with the particular system of criminal theory because criminal liability has different interpretations in different systems of criminal theory and the relationship between criminal capacity and criminal liability is also dissimilar. In the civil law system of criminal theory, criminal capacity, intent or negligence combined with other elements constitute liability (criminal liability), therefore, criminal capacity should be included in the elements of liability. Nevertheless, in the system of criminal theory in China, criminal liability is the core of the subject of crime (refers to natural person), which is one of the constitutive elements of crime. Criminal liability is the legal consequences of the act that has constitutive elements of crime, which means criminal capacity is certainly the prerequisite of criminal liability. Furthermore, it is certain that the relationship between 'criminal capacity' and 'criminal liability' in the civil law system, in essence, is not the same as that in China. The relationship between criminal capacity and criminal liability in the civil law system of criminal theory is generally equivalent to the relationship of criminal capacity to subjective elements of crime in the system of criminal theory in China.Part two is concerned with the degree of criminal capacity. In this part, the author mainly expounds that criminal capacity has not only a dual state of 'having' or 'having not' but also with different degrees. The degree of criminal capacity determines sentencing and the convicting of the actor depends on whether he has criminal capacity or not.Part three discusses the factors that determine and affect criminal capacity. There are a number of factors that can determine and affect the criminal capacity of the actor, which include both internal and external factors. But the internal factors, age of criminal responsibility, defect of physiological function and mental disorder in particular should play a key role in analyzing the criminal capacity of the actor. And the external factors independent of the actor can not be controlled by criminal capacity itself but rather are the criteria measuring it or a possibility that criminal capacity expects. In this part, the author proposes that age of criminal responsibility is the legal criterion presuming criminal capacity and it should be consistent with criminal capacity and that the lower limit of criminal responsibility age should not be extended nor should the upper limit of it be definitely provided. Then, the author discusses the influence that defect of physiological function has on the criminal capacity of the actor as well as puts forward that whether and how a person of defect of physiological function committing a crime should be punished leniently is determined by the influence that defect of physiological function has on the actor's ability to recognize and control his behavior while committing a crime. And finally, the author points out that the concept of 'psychosis' in criminal jurisprudence should be based on the achievement of modern medical research and development, and that the term of 'psychosis' provided in the Criminal Law of China should be replaced by 'mental disorder' and 'psychotic patients' be replaced by 'patients with mental disorder' correspondingly. It is certain that 'psychotic patients' can only be understood in a broad sense when the Criminal Law is not revised. Moreover, mental disorder or psychological block should be divided into psychiatric mental disorder and non- psychiatric mental disorder in criminal law so as to study the actual influence that each has on the criminal capacity of the actor. If a patient with mental disorder bears no criminal liability or is punished leniently, it can be deemed that this is based on the fact that it is mental disorder that leads to the illegal act, not due to the act of the patient with mental disorder.Part four deals with the identification of criminal capacity. It demonstrates that the identification of criminal capacity should be undertaken by considering the 'age', 'the state of mind' and 'physiological function' of the actor while acting. In judicial practice, the identification mainly refers to the criminal capacity identification of the patients with mental disorder, which should be done by integrating 'biological standards' with 'psychological standards'. And the two standards should be unified. At the same time, three relationships must be handled in practice, that is, the relationship of medical standards to psychological standards, the relationship between the then criminal capacity and the afterwards judicial identification of mental disorder as well as the relationship between the judicial identification of mental disorder and what the judiciary decides.