張明楷_刑法的基本立場_(ZhangMingkai_criminallawx27sbasic

1、張明楷 _刑法的基本立場 _( Zhang Mingkai _ criminal law's basicposition _ )Law of China, Vol. 1, No. 2002, No. 1The basic standpoint of criminal law in Zhang Ming's sorrow,(Beijing, China Legal Publishing House, 20020)The basic position of criminal law written by Professor ZhangMingkai is divided into

2、eight chapters. Chapter one is the criminal law of the continental law systemIn the history of brief introduction of school debate ever seen, the old school and new school ideas, andOn this basis, the paper analyzes the theoretical status ofChinese criminal law, and draws the conclusion: whether in

3、criminal theory or penaltyOnthe side, both to the newcriminal law perspective dominates. The second chapter through to the old and new in crimeThis paper makes a detailed review of the arguments (objectivism and subjectivism), and holds that the current criminal law in China is now under wayInclined

4、 to objectivism criminal law, and enumerated in detail the benefits of this tilt. The third chapter discusses concretelyThe two tendencies in the interpretation of constitutive elements of crime in civil law countries are discussed, namely, formThe explanation theory and the substantial explanation

5、theory indicate that the author agrees with the theory of substantial explanation, and thinks the crime in our countryThe system of constitution determines that our country must adopt the substantial explanation theory. The fourth chapter discusses the root of illegalityAccording to the. The author

6、probes into the existence of illegality in the foreign criminal lawAfter the theory of value and the result of non value, it expresses the view that result in the result of non value, and thinks that our countryThe present criminal law adopts the position of result non value theory. The fifth chapte

7、r is the best embodiment of various theories in Criminal JurisprudenceThrough the concrete analysis of the theory of attempted offense, the author holds that the theory of criminal law should be based on the substantive view, that is, the infringement of legal interestsThe definition of "perpet

8、rating act" and the determination of"starting", abandoning formalism and subjectivism. The sixth chapter commentsThis paper expounds the debate on the commontheory of criminal commonaction and the theory of crime, and advocates the theory of common crime. The seventh chapter studies a

9、ccomplice fromAttribute and the theory of independence of accomplice, criticize the duality of abettor and the theory of instigator independence. Eighth chaptersThe basic concept of punishment is discussed, that is, the legitimate basis of penalty, the principle of sentencing and the degree of penal

10、ty.The basic concept of the book can be roughly summarized as follows:The first is objectivism's criminal theory standpoint. The expression of this position is mainly through the interpretation of the current punishmentThe amendment of several articles in the old criminal law can be interpreted

11、reasonably from the standpoint of objectivismEmbodied. After that, the author criticizes the defects of the old criminal law which is inclined to subjectivism,In the description of the criminal law which is inclined to objectivism, the attitude of the current criminal law is highly praised, which ex

12、presses its great significanceThe standpoint of criminal jurisprudence, which emphasizes objectivism, and embarks from this standpoint, on the theory and practice of criminal law in our countryThe subjectivism of criminal law in the practice of judgmenthas been critically discussed. In addition, the

13、 book is relevantThe analysis of attempted offense and accomplice is basically based on the standpoint of objectivism criminal lawRow analysis.Zhang Mingkai: the "field" of the criminal lawLaw of China, Vol. 1, No. 2002, No. 1Indeed, in the cognizance of the crime, should we value the obje

14、ctive factor or the subjective factor?The knotty problems in criminal jurisprudence. From modern criminal law to the principle of legally prescribed punishment for a specified crime, the principle of responsibility and behaviorThe basic standpoint of the principle, of course, should undoubtedly cons

15、ider the objectivity of the objective elementsSolution. However, insisting on objectivism is not a slogan or putting forward a view to solve itProblem solving. Because the historical view of objectivism or subjectivism is not complete, penetratingThe tail land advocates a certain factor, and often i

16、ntentionally or unintentionally, with a variety of clever packaging, will be objective and subjectiveThe elements are entangled together and appear in an impartial, comprehensive and impartial manner, therefore, in the realistic criminal lawIn spite of the cautious attitude towards subjectivism in c

17、riminal law, the study of the same time, however, has been carried out at the same timeOn the analysis of many problems,But inadvertently stood on the position of subjectivism in criminal law. Most classicThe representation of the type is the criminal theory standpoint that the subjective and object

18、ive view is consistent with the theory of criminal law in ChinaIs in line with the practical attitude, while sitting on thefence between according to the need of subjectivism and objectivism standpoint.Solution. In view of the present situation of the study of criminal law in China, this paper puts

19、forward the view of criminal theory of objectivism at the end of bigotryTo improve the theory and practice of the criminal law pragmatism in China's criminal lawHowever, it has its positive meaning.Secondly, the theory of illegality of the result non value theory. As a result, the theory of non

20、value and the theory of priceless act is the continentHow to analyze the illegality of behavior concretely in legal system countries, that is, the so-called social harm in criminal law of our countryThe essential problem of sex, an analytical method proposed.According to the theory of priceless valu

21、e of behavior, the basis of illegality lies in thatThe form of behavior itself (anti rational) and the subjective malignant behavior of the actor, that is, the evil of the behavior itself is determinedThe basis of the illegality of behavior; on the contrary, the result of non value theory holds that

22、 the basis of illegality lies in the action pairThe infringement of legal interests or the result of the threat, that is, the evil of the result of action, is the basis for judging the illegality of the act.So far, the general theory of criminal law, including China, is based on the theory of behavi

23、oral non valueZhang starts from the standpoint of the preceding (behavior) and the general person's point of view to analyze the illegality or behavior of the actSocial harmfulness. However, in recent years, the increasingly powerful result of the non value theory holds that, on the one hand, th

24、e act is worthlessIt is easy to form a violation of ethical path by taking the anti ethics as the basis of illegalityThe behavior of morality is regarded as the tendency of crime; on the other hand, in some cases, there is also an improper reduction of punishmentTherefore, this view holds that when

25、the act is illegal or socially harmful, it should beFrom the point of view of conflict or comparison of legal interests, engaged in post (judgment) and scientific view (judge's position)To judge.The general theory of criminal law in China has always taken the essential character of crime, that i

26、s, the entity of social harmfulnessThe analysis is based on the standpoint and viewpoint similar to the theory of behavioral non value. Think about analyzingsome behavior, isn't it?When it is harmful to society, it is necessary to take into consideration the social relationship, thenature, the m

27、ethodand the hand of the behaviorThe consequences of the act or the possible consequences, the behavior itself, the behavior of the subjective situation, the lineA period of social situation, etc. The most important problem is the method of judging all kinds of factors when considering behaviorIt is

28、 possible to punish certain acts that do not really have social harmfulness and need to be punished according to the situation,It is easy to lead to the tendency of conviction of subjective elements of behavior oriented people, and this tendency is the cause of our countryOne of the reasons for repe

29、ated prohibition of extorting confessions by torture in judicial practice. Therefore, it criticizes the theory of behavioral non valueThe book reviewsXiao Hua Law Volume 1 - 2002 - 1It is of practical significance to advocate the results of non value theory.Again is eclecticism (eclecticism penalty

30、standpoint). On the purpose of penalty, the old school and theThe new view is diametrically opposite. The former advocates retribution punishment, while the latter advocates educational punishment. After that, becauseThe old school and new school between the integration, therefore, in respect of the

31、 purpose of penalty, the two is on the way to compromise. AndDoctrine is the penalty view after this compromise. It regards the theory of relative retribution as the content, and considers the justification of penaltyOn the one hand to meet the concept of justice, one must also sow the wind and reap

32、 the whirlwind, preventIf a crime is necessary and effective, it should achieve the purpose of general prevention and special prevention within the scope of retribution penalty.That is to say, the ultimate aim of the concept of punishment in conformity with the doctrine of punishment is ultimately a

33、pproaching the concept of retribution penalty. It should be said that in the theory of punishmentThis concept is the inevitable conclusion of objectivism in the view of criminal theory,At the same time for our reasonIt provides a theoretical basis for the revision of China's current criminal law

34、; atthe same time, it is suitable for ouractual punishmentIt also provides an illuminating reference.Finally, we should pay more attention to the reflection and criticism of the general theory of criminal law in ChinaStand. Although this is probably not the author's original intention, it is a m

35、atter of fact and detail from the bookBy analyzing the process of argumentation and the conclusion of originality, the author believes that he should vindicate himself to the criminal lawField, I'm afraid, is not entirely the author's original intention, the original intention is through the

36、 analysis of the above problems, I hope our countryScholars can learn from the rules and methods of criminal law research, practically, not abstractly, systematicallyRather than contradict each other's point of view. Only by looking at the "preface" of the bookUnderstand.Above, the aut

37、hor according to his understanding of the main content of Professor Zhang's "basic position of the criminal law",A superficial analysis and understanding. Of course, the author's doubts are also difficult to conceal. First, the objective principalAs a kind of vanguard criminal law

38、theory, justice and resultnon value theory are liberalism and individual life in criminal lawThe principle of interest protection is closely related. In other words, the basis of its existence is to emphasize individual interests and personal freedomThe supremacy of liberalism values and the constit

39、utional system, that the criminal law is the law of interest protection, rather than social orderMaintenance method. This concept and foundation, as well as the national interest and collective embodied in the current constitution and criminal law of our countryThe criminal law is one of the meansto

40、 adjust social relationsHowto coordinate the relationship between functional views is still a big problem worthy of study. Secondly, the objective principal of criminal lawThe most obvious feature of righteousness is that the pure objectivism is advocated in the determination of illegality, that is

41、to say, it is a certain actIt is not illegal, but can only be determined by objective factors or can be reduced to objective factorsHave to add any subjective factors. As for the basis of dealing with attempted crime, subjectivism is understood as a perpetratorIt not only carries out the perpetratin

42、g act of some attempted crime, but also shows the perpetrator's offense from the act of perpetratingThe intention of crime; however, objectivism holds that the intention of crime is the problem considered in the responsibility and the illegality of the actSex is because the act does not cause re

43、sults, but it has the risk of causing results. Precisely becauseIn order to have such objective danger, it can be said that it is illegal. Similarly, in self-defense, emergency avoidance, preparationThe same understanding can be made on crime, discontinuation of crime and other issues. Professor Zha

44、ng also agrees with this view in the book.However, this view will be very controversial whentransplanted to the criminal law in china. In accordance withThe criminal view of objectivism, accidental defense, that is, the act of infringement committed by criminal intent, is coincidentalZhang Mingkai:

45、the basic field of the lawLaw of China, Vol. 1, No. 2002, No. 1Whenthe result of the defense, because thereis no result, novalue is the result of the crime prohibited by law, so,It is not illegal and should not constitute a crime. However, Professor Zhang draws lessons from Professor Hirano Ryuichi,

46、 a Japanese scholarThe author thinks that this situation still constitutes crime, but constitutes an attempted crime. But this conclusion is obviousIt is inconsistent with the results of Professor Zhang's view of non value illegality. Because even attempted crime is alsoIs it a crime or an illeg

47、al act?. However, according to the nature of illegality is no resultHow to say that the value of understanding does not result in the result of non value behavior, how can it be said to be illegal behavior?What about it? It's puzzling. Finally, objectivism and the theory of non value of conseque

48、nce are the nucleus of judging the illegality of behaviorThe idea of mind is the theory of infringement of legal interests, that is to say, in addition to the protection of criminal law, in the judgment of illegality of behaviorInfringement and threat of benefit,Other factors should not be considered. However, the scholars who advocated this theory abroadIn view of the illegality, that is, the judgment of social harmfulness, even advocating the implementation of the so-called legal interests infringementSay, or admit, to consider other factors besides infringementof legal in