Comparative Study Of Erfolgsunwert And Handlungsunwert In Criminal Law

After decades of development, it can be described that there are diverse kinds of theories in our theory of criminal law. However, we should face a real problem that is our criminal law doctrine lack of theoretical consistency and foundation, resulting the confusion of the study of criminal law and it is difficult to be at strategically advantageous position. Moreover, traditional criminal law which is to harmness of society at the core often falls into the quagmire of subjectivism criminal law and there is a fundamental conflict between it and the judicial philosophy of the modern state. So more and more scholars have advocated the replacement of Substantive Law Violation theory theory of the harmness to society, and we have to talk a set of concepts——"Erfolgsunwert" and "Handlungsunwert" when we make a judgment on the merits of illegality. The initial controversy between them began in illegal areas, but now it has been exteened to the entire commission of criminal law and punishment law, such as dispute about the nature of the crime, the judgment of the subject of illegal negates,doctrine of the unguiltyer, legitimacy grounds of penalties and so on.Dual "Handlungsunwert" only consider the harmness of the act itself which is cut off with the results and the danger of of the which is characterrized by the behavior.It is siminar to subjectivism criminal law which only consider the danger of of the which is characterrized by the behavior and the harmness of the act itself which is cut off with the results and can easily fall into in the quagmire of subjective conviction. It has been basically unadvocated by the scholars. The dual "Handlungsunwert" attempts to be harmless and becomes a "universal theory", but it is grotesque creature produced by a bizarre blend of stiffness and starkness, and is in a catch-22situation. Finally it becomes a rhetorical device. What’s more, Dualism is far from the context of China. We should let "Erfolgsunwert" become an an important weapon to judge the real illegality.This article is divided into a total of seven parts:The first part discusses the transmutation of two theories in Germany and Japan, to make the modern investigation as historical background. The second part discusses their theoretical Orientation and its foundation to start, and reveals the basis of location of the two theories in the relevant theoretical system. Meanwhile, analysising the concept of the theory and snoop its nature.The third part makes the logic investigationto compare the two theories, through describing their logical thinking both in the crime ring settings as well as typical cases, revealing the dualistic’s misunderstanding in logic aera.Part IV discusses the differences of two theories in judging basic point, such as the purpose of criminal law, illegal judgment object, the time of the illegal judgment, and thus reveals the gaps of dualism in judging the reference point.The fifth section discusses the implication of norms which behind the two theories, including a decision and criterion to the norms, referee norms and behavior norms, reveals the misunderstanding of the dualism in the science of norms.Part VI discusses the commencement of use of the two theories in a number of specific areas, involving two theory’s position about attempting to commit and can not be fined not guilty, the position of the victim consenting to the harmful actions, the position of the penalty legitimacy, accountability position as well as on the concept of opposition.Part VII discusses the problem of convergence between our existing legislative level and the status of the rule of law and the two theories, to further demonstrate the reasonableness of the Erfolgsunwert.