Research On Normative Elements

In continental law system country, the constitutive requirements elements are dividedinto normative elements and descriptive elements which has been commonly recognized bythe scholars, but normative elements as an important part of the content in the field ofcriminal law in our country are almost in a blank state, even in the continental law systemcountries, such as the criminal law system, the normative elements also didn’t get enoughattention. Normative elements is in the legislation standard and under the premise of legalinterpretation, also needing to judge or experts outside the law culture, the essence of moralvalue evaluation. Normative elements as a kind of open structure, elements of constitution oftype characteristic, is the task of legislation judicial share, the account of and as a closedstructure of elements, the fundamental difference between the elements of its research hasimportant practical value.Based on the basic theory of the components of the normative elements and not violatingChinese criminal law under the premise of theoretical research of the elements types of theconstitutive requirements of specification, relationship with clarity principle of criminal law,and the application of legislation and judicial practice in our country give detail, beyond thetheoretical research level, hope to study norms of the elements of the constitutiverequirements to produce certain effect on our country’s criminal theory system, play an activerole in the application of the judicial practice. the judge correctly and rationally evaluate thenormative elements that is advantageous to the judgment of the criminal law and justice ofcriminal law in the disputed problem will be solved. Therefore, it is very necessary to to ourcountry criminal law practice through research on normative elements.The article on the structure is composed of four chapters.The first chapter is introduction. Starts from abroad and the research status of normativeelements and compares its research status in our country, to explain the lack of research on thetheory of our country, and puts forward the necessity of research and discussion, and the realvalue of the research are briefly introduced.The second chapter to regulate the basic theory of normative elements are reviewed, mainly including normative elements development phase components, connotation andcharacteristics, and openness and the relation of the elements of unwritten constitutions,classification. The components of the specification elements has experienced, start with a notgenerally accepted, the evolution process of the finally got scholars will accept.To give anaccurate definition of the normative elements need to be clarified with the standard ofdescriptive elements, and different scholars have different standards, the author based on theanalysis of various views on the basis of summarizing the basic connotation of the elements ofthe normative.In China’s criminal law theory system, the components of the openspecification is contained in the elements of the constitution of crime, which is open thecontent of the constitutive requirements of a form, and can’t see the two as the same. Similarly,in the components of the specification elements, only part of the accord with the nature of thecomponents of the unwritten elements, they are not identical, but in the presence of crossrelationship.Through to the normative elements of the traditional classification about the "fourtypes","three types","two types" of criticism, the author thinks that normative element isdifficult to use a specific standard to decide, to judge actively value evaluation andcomplement, exclude the existence of legal evaluation elements, limited to the normativeelements of type two kinds.The third chapter to regulate the composition of the essential elements and therelationship between the clarity principle, is the focus of this article. By analyzing theprinciple of clarity in the important position of our country criminal law theory and theory offunction, the principle of clarity reflects the criminal law’s rigid, and the characteristics of thenormative elements and the criminal law provides flexibility and vigor, that make the twothere is a certain contradiction. But regulatory elements and relative clarity and predictabilityand understandability, provide the basis for the fit of both.normative elements and therelationship between the clarity rule processing not only show the relationship between legalrules and legal principles, more important is the principle and the principle of conflict, theconflict between policy principle and the clarity principle, in the interests of the specificdecision need to be protected according to the size to determine which is preferred.The fourth chapter is the judicial operation of normative elements. Lawmakers in theprocess of legislation, uphold the descriptive elements shall prevail and normative supplement applicable principles, to make use of normative elements based on descriptive elements used,on the basis of descriptive elements to form effective restriction and restriction factors ofstandardization. And example is taken and shown in the legislative provisions, such aslegislative measures for the legislative interpretation. The components of the specificationelements of judicial application is the ultimate end-result of normative elements of theoryresearch and the foothold. Normative elements of judicial interpretation should be graduallyturned to pay attention to the micro macro argument reasoning, of the judicial referee itselfshould be full of reasoning and argumentation, enhance the rationality of the referee andacceptability. The standard specification of the elements of the constitutive requirements ofjudicial application experience should be a general social cognition or the idea of ordinarypeople. Also for normative elements of judicial application according to the differentclassification, respectively in different social norms as the logical premise of judgment.