Discussion Of Gravity Of The Circumstances From The Conviction Perspective

The setting of gravity of the circumstances was an innovative move of Chinese criminal law,which has unique value and character in the Chinese criminal law.The reason to set gravity of the circumstances lies in that it is difficult to reach punishable degree of behavior under regular clauses of criminal law,and through regulation of gravity of the circumstances,we can improve the illegality of behavior and include it into the scope of punishment regulation.By adopting the legislation mode of gravity of the circumstances,it can endow flexibility and tension to the clauses of criminal law,which can address the changing social environment and new crimes,and realize contradiction harmonization between the stability of criminal law and social diversity.However,in the meantime,the uncertainty of the content of gravity of the circumstances has increased the difficulty of judicial application.Therefore,this paper introduces and discusses gravity of the circumstances on five parts,hoping to build a theoretical system for gravity of the circumstances.By discussing the theoretical foundation of gravity of the circumstances,this paper will prove the reasonability and necessity of its existence.The setting of gravity of the circumstances has the technical basis of overcoming the defect of language unicity,legislative basis in consistency with the Chinese quantitative legislation model and the judicial basis to regulate discretion requirement.Through introduction and analysis of the theoretical basis of gravity of the circumstances of different doctrines for constitution of crime,this paper determines that as the comprehensive component,gravity of the circumstance has substantial influence on determination of crime,which is the standard for criminal composition rather than accomplished crime.In this paper,the legislation model for gravity of the circumstances is established by combining regulation of gravity of the circumstances in the clauses of criminal law,i.e.,the single legislation model and composite legislation model.Based on analysis of the specific performance of legislation model,we further discuss its theoretical basis and legislative intention.In this paper,the system establishment of gravity of the circumstances is mainly realized from the perspectives of legal interest infringment,subjective evil,subject identity and miscellaneous provisions.It is specifically presented as detailed analysis on various aspects,including the consequence,method and specific elements of legal interest infringment,the element of subjective evil and the subject identity element,hoping to deepen and expand the understanding and mastering of gravity of the circumstances on micro-level.Based on analysis of the legislation model and techniques for gravity of the circumstances,this paper proposes reasonable measures to improve the existing problems.Research on gravity of the circumstances aims to specify the applicable circumstances of gravity of the circumstances,provide theoretical basis to determine circumstance crimes,build and improve the theoretical basis of gravity of the circumstances,and as a result,the function of gravity of the circumstances to limit criminalization and protect society can be truly carried out.