Substantive Judgment Of The Conformity Of The Constituent Elements

In recent years,Zhao Chunhua’s illegal possession of guns as a typical case of the emergence of a number of statutory offenses,increasingly highlights the current judicial practice of our country and even the criminal law academic circle in the process of identifying certain aspects of the cognitive bias.From the perspective of the theory of the formation of class crime,this problem is mainly reflected in that when the judicial judges the conformity of the elements,they only make a formal judgment based on the criminal law text,but not a substantive judgment based on the legal interest.In the past,a tendentious attitude was that the judgment of the conformity of constituent elements was the formal judgment of facts,while the judgment of illegality was the substantive judgment involving value.However,with the development of the theory of constituent elements,it is difficult to hold this view.With the development of the theory of constitutive elements,the elements of constitutive elements include not only objective elements,but also subjective elements,not only narrative elements,but also normative elements.At the same time,the relationship between the constitutive elements and illegality is increasingly close.The constitutive elements have the function of presumption of illegality.Most of the substantive evaluation contents that originally belonged to illegality have been transferred to the constitutive elements.Now the main responsibility of the illegality class is to remove the cause of obstruction of illegality.In this case,the judgment of the conformity of the constituent elements must include the substantive judgment,which is different from the judgment of the cause of illegal obstruction in function.For the judgment of the conformity of constitutive elements,we must adhere to the judgment order of form first and then substance.The formal judgment abides by the bottom line of the common meaning of criminal law,and completes the task of form into crime.The substantive judgment takes the infringement of legal interests and the necessity of punishment as the object of review,and realizes the function of substance out of crime.The two are unified,forming an organic whole within theconformity class of constitutive elements.