Research On Actio Libera In Causa

Theoretically,the discussion of "actio libera in causa" has formed three camps represented by the constituent element model,the responsibility model and the exception model.However,the specific viewpoints of different scholars are quite different,and the specific connotations of actio libera in causa are also different.This paper first clarifies that the subjective state of causal behavior has meanings,and accordingly proposes five types of actio libera in causa types as the basic premise of this paper.The theory of actio libera in causa is not a complete and rigorous theoretical system produced by the void.In fact,it is a thought in order to blame the perpetrator in the interpretation of criminal law.It may be related to other imputation ideas,such as the theory of inaction and negligence.The three theoretical models can be summarized into two major interpretations,namely,the interpretation of the "act of perpetrating"and the interpretation of the "actor".There are no right or wrong in the two maj or ideas Only when combined with specific legislative examples can we evaluate the pros and cons.The idea of the former is conducive to maintaining the rigorous theory system of the German and Japanese criminal law theory.However,it is found that the scope of actio libera in causa is narrow and it is difficult to respond to the requirements of criminal policy.The latter is more in line with the concept of general social justice However,it is necessary to meet the requirements of the principle of legality of liability and the principle of responsibility for reasonable interpretation.The origin and development of the theory of actio libera in causa are closely related to the legal interpretation of Articles 20,21,and 323a of the German Criminal Code,and the rigorous theory system of German criminal law theory based on"behavior".Article 39 of the Japanese Criminal Law stipulates the necessary mitigation provisions,but lacks the legislative basis for actio libera in causa,so it is easy to cause loopholes in punishment.The focus of Japanese theory is to make a reasonable explanation for it,and at the same time try"general legislation" in the draft criminal law.Different from the strict restrictions of Germany and Japan,the punishment for actio libera in causa in our country’s practice still remains in the rough stage dominated by criminal policy,and the legislative provisions are also vague.At the same time,the understanding of the theory of actio libera in causa is too superficial,and there are many problems such as objective blame and abuse of penalty power.China should make efforts at the legislative and judicial levels.At the legislative level,it promotes the legislative model combining general rules and sub-rules.The judicial level absorbs the rational part of the theory of actio libera in causa,and does the punishment rights under the requirements of responsibility and the principle of legality of crimes.How to find the best balance between criminal policy,legality of crimes and responsibility,requires the constant exploration of the theory and practice of various countries.