A Study On The Theory Of Substantive Illegality

Four elements crime constitution theory of China’s criminal law is the yuan, the components of the dual theory, theory of crime constitution and the civil law of three class, no independent illegality judgment. Illegality theory have the illegality and formal illegality in two theories, form illegality claims from the perspective of legal order, considered illegal violation of national laws; Essential illegality think illegal mainly refers to national social and cultural ethics violation or quilt, threat. Form illegality in practice, can easily lead to a case of injustice, to expand the state power, is not conducive to safeguard human rights. Successor in Chinese criminal law theory of crime in the former Soviet union, according to the theory of social harmfulness as the core, the subjective color, strong and modern spirit of rule of law has been deviating, substantive illegality theory in the principle of legally prescribed punishment for a more flexible, constitutive requirements + substantive illegality in double level judgment to solve the disadvantages of traditional theory. Therefore, advocate using essence should replace the social harmfulness as the nature of the crime. In terms of illegality judgment itself, whether we are using four elements system or three class system, it has important significance in theory research. Through comparison and analysis of material forms of illegality and illegal content and the advantages and disadvantages are analyzed and compared, and collect relevant books and journal articles on substantive illegality behavior under no value and the value theory is used in the comparison, it is concluded that the behavior of the binary value theory is more suitable for our country’s conclusion, apply it to the crime constitution theory to promote the development of the legislation in China, the rule of law, the progress of my career.