| The term of "Actio libera in cause", which means that a person commits a crime under the condition of non-criminal liability or limited criminal liability but the condition is caused by the person himself or herself, was originated in the continental genealogy of law. There is no concept of "Actio libera in cause" in traditional theory of Chinese criminal law. However, since it was introduced into China, it has aroused many arguments. According to the criminal liability, it is the premise of crime that a person has the responsibility when he or she commits harmful action. If a person commits harmful action under the condition of non-criminal liability or limited criminal liability, he or she should not be punished or should be alleviated the punishment. However, if this principle is applied absolutely, a person who commits harmful action under the condition of non-criminal liability or limited criminal liability intentionally can evade the criminal punishment. Therefore, the criminal law scholars of the continental genealogy of law propose actio libera in cause and attempt to search the reason of the punishment of actio libera in cause. The scholars think that a person who commits a crime under the condition of non-criminal liability or limited criminal liability but the condition is caused by the person himself or herself should be punished, because a person in actio praecedens has the criminal liability and falls into the condition of non-criminal liability or limited criminal liability due to intention or negligent. In this situation, if the person is not punished, it is obviously against the law sentiment of common people as well as the necessity of the criminal law. But in this kind of situation there is a contradiction between the punishment of actio libera in cause and the principle of criminal liability. Therefore, the author deeply researches whether actio libera in cause can be the cause of punishment, if it is punished, what is the reason of actio libera in cause? And how do people recognize the intention crime and negligent crime about actio libera in cause?This paper includes four parts. In the first part of the paper proceeds with concept of actio libera in cause, the author reaches his conclusion, which it defines that a person commits a crime under the condition of non-criminal liability or limited criminal liability but the condition is caused by intention or negligence, through inducing and analyzing various concepts of actio libera in cause. Then, the author looks back on the source and development of the theory and mainly introduces various ideas about the actio libera in cause in various periods. Now, the punishment of actio libera in cause is possessed of controlling status. The author points out that it can conflict with the normal legal order and depart from the common national's law sentiment of justice. Based on the discussion above, the author reaches his own idea that there are five characteristics of the actio libera in cause. The first is that a person falls into the condition of non-criminal liability or limited criminal liability. The second is that a person has fault for this situation. The third is that the criminal liability and harmful action is separated. The fourth is that the condition of non-criminal liability or limited criminal liability is of temporariness. The fifth is that a person has complete criminal liability. In the second part, the author introduces various views about the punishment of actio libera in cause, and agrees with modifying liability according to the purpose of the criminal law. The author thinks that the punishment of actio libera in cause is required for the purposes of the criminal law, which includes four parts: the first is that the criminal law must take the harmful action as the object; the second is that the criminal law must take the preventability of harmful action as the premise; the third is the criminal law must take punishment of harmful action as the foundation; the fourth is that the function of the criminal law must keep relatively reasonable limit. Actio libera in cause is proposed for making up insufficiency of the criminal law. It modifies the principle of criminal liability, but it receives the strict limit by no means unprincipled. It requires a person who has the criminal liability can have the possibility to avoid it. The penalty only can be applied when a person commits a crime but he or she has the possibility to avoid it. In the third part, the author deeply researches the criminal patterns. Then the author researches how to recognize intention crime and negligent crime about actio libera in cause. About acting to execute on intention crime, there are three different viewpoints, the author agrees with resulting act. About recognizing negligent crime about actio libera in cause, there is a question how intention crime is different from negligent crime. The author thinks it depends on subjective mind about result. In the fourth part of this paper, on the basis of retrospection of the theory and foreign legislation, the author analyzes some defects about relative legislation in Chinese law, and puts forward some pieces of advice of actio libera in cause for lawmaking. The author thinks the legislation model should be adopted which general provisions intermingle with specific provisions in Chinese criminal law. Actio libera in cause should be added to general provisions of criminal law that a person who commits a crime under the condition of non-criminal liability or limited criminal liability but the condition is caused by the person himself or herself must take the legal responsibility. And the specific provisions of criminal law should additionally build a charge for actio libera in cause and put it in the crime of endangering the public security. |
