Research On The Problem Of The Recovery Of The Legal Interests Of Actual Damage Offense

At present,in the mainstream view of criminal law,the essence of crime is the proposition of infringing upon legal interest.Among them,the actual harm crime refers to the type of crime that actually infringes upon legal interest and establishes the accomplished crime with the appearance of objectively visible actual harm result.At present,because of the problem of whether the legal interest can be restored or not has been ignored,the viewpoint that once the infringement of the legal interest of the actual offender is caused,it can not be restored exists.This view has a direct impact on the recovery of the legal interest of the perpetrator after the completion of the crime.In China,it can only be considered as a sentencing plot,and most of the sentencing plot is discretionary sentencing plot,which presents various problems in practice.Although there is no relevant system for the recovery of legal interest in China’s criminal law,individual provisions have indirectly recognized that the legal interest of the actual offender can be recovered after being infringed,and this recovery behavior will have an impact on conviction and sentencing.In order to explain this phenomenon in legislation,Chinese scholars use the theory of "the subject matter of individual relieving penalty" to confirm the existence of legal interest recovery and discuss the criminalization and light punishment of legal interest recovery behavior.However,these foreign regulations and theories do not explain this problem from the perspective of legal interest Ontology,so the explanation of this problem is not thorough.This paper attempts to explain the problem of legal interest recovery from the perspective of legal interest ontology.From the perspective of the noumenon of legal interest,the issue of legal interest recovery breaks the problems of individuality and exception in other theories cited by scholars,and basically provides a unified judgment standard.The in-depth theoretical research can also provide guidance for legislation and judicial practice,help to solve the problems of insufficient evaluation and imbalance in legislation,as well as the imbalance in sentencing in judicial practice,and so on.It can be said that the research on this problem is of great significance.This paper is divided into five parts,a total of more than 40000 words.The first part is the introduction and analysis of the irrecoverable point of view after the infringement of the actual damage.This part introduces how to understand this point of view,and comments on this point of view.In the first part,the concept of actual harm crime is defined,that is,the type of crime that causes actual harm to legal interest and establishes the accomplished crime with the appearance of objective visible actual harm result.Secondly,it shows that the general theory of irrecoverability only sees the reality level,including the fact that the reality level is irrecoverable and the existing norms that the legal interest is irrecoverable after being infringed.In the latter part,the author expounds that this kind of irrecoverable view is the illusion of neglecting the problem of legal interest recovery.The second part is the refutation of the existing point of view that the interests of the actual injury are irrecoverable after being infringed.It is a kind of illusion that the real damage against legal interest can not be restored after it is infringed,which can be refuted.At present,the existing basis of refutation includes: through analysis,it can be found that there is a breakthrough in legislation that the legal interest can not be restored after it is infringed;there is also the criminalization of related cases in practice;there is a direct refutation point of view in the theory of the domain;the theory of the domain is used to refer to The extraterritorial legislation and theories that support his viewpoint can also provide reference for refutation.The third part is the proposition of the recovery of the actual damage.This part is from the perspective of necessity and ontology feasibility to demonstrate why it is necessary to study the issue of legal interest recovery from the perspective of legal interest and solve the problem of whether it is true and feasible.The necessity of its proposal is that although the existing legislation has paid attention to the problem of the restoration of legal interests and realized the specific operation in practice,it is still not enough.The existing legislation violates the principle of equality,so there are obstacles in the operation of practice.In the final analysis,these problems are caused by the lack of theoretical research.Therefore,it is necessary to dig into the problem of legal interest recovery from the perspective of legal interest noumenon which scholars have not studied.And the legal interest can be recovered from the fact level and value level(criminal policy level also belongs to the value level)of the legal interest.The fourth part is the concrete identification of the recoverable legal interest of actual injury.This part identifies which specific types of actual harm crime have the recoverability of legal interest,which is reflected in the types of legal interest,time limit,means requirements,results requirements,etc.In the type of legal interest,the life legal interest in the personal legal interest can not be restored,while the damage to the body health legal interest can be restored in the case of minor injury,and the free legal interest,personal reputation legal interest and personal property legal interest are all recoverable.In order to protect the super personal legal interest,the cumulative crime and the dangerous crime are not in the scope of this paper,but the preliminary conclusion of this paper is that the super personal legal interest is irrecoverable.In the crime of compound legal interest,whether its legal interest can be recovered or not should be seen separately.In terms of time limit,the latest time for the restoration of legal interests should be before the relevant judicial organs put on record for investigation.In terms of means,the means of recovery should focus on equal quality rather than equal quantity.In terms of the recovery result,it is necessary to have the appearance of the legal benefit recovery result.The fifth part is the reflection on the criminal law response after the recovery of the actual damage and criminal interests.This part introduces how to deal with the problem of criminal law after the recovery of the legal interest of actual injury.Nowadays,there are two ways to deal with it,one is to commit a crime and the other is to punish lightly.The way of committing a crime should only be regarded as a judicial way,and the way of light punishment can be affirmed from legislation.The punishment way of light punishment should be upgraded from the current discretionary circumstances to the statutory circumstances,and the lenient range should be lightened,lightened or exempted according to the degree of recovery of legal interests and the previous harm of the actor.The sixth part is the concluding remarks.This paper is a preliminary study on the problem of the recovery of legal interest of the actual injurious crime which is not paid enough attention by the theoretical circle.Since it is the problem of the recovery of the legal interests of the actual injurious crime,the angle of the dangerous crime relative to the actual injurious crime also has the research space.Since it is a preliminary study,the conclusion is inevitably immature,including whether the specific recognition of the recoverable legal interests of the actual harm can be restored and whether the limit conditions of the recovery are reasonable can be further explored.The issue of legal interest recovery can also be compared with the issue of "atonement" in the theory of criminal law in China.In addition,we can think about the relationship between criminal policy and legislation in the process of studying this problem.