China's criminal law theory of criminal composition

In our country, "criminal composition" actually refers to the elements of the crime. Traditional criminal law theory, the concept of crime after the discussion of criminal composition, that criminal composition is the establishment of crime must have the subjective and objective elements of the organic whole, composed of four aspects: (1) the object of the crime, refers to the criminal law of our country to protect the socialist relations for the violation of criminal behavior; (2) the objective aspects of the crime, refers to the criminal activity in the objective external manifestations, which mainly includes the harmful acts and harmful results; (3) the subject of the crime, refers to reach the age of responsibility, with the ability to responsibility, the implementation of social harm, the unit can also become part of the subject of the crime; (4) the subjective aspect of the crime, refers to the subject of the crime on the implementation of the harmful acts and harm the results of the psychological attitude held by the subject. This is in China's criminal law theory, the dominant doctrine of criminal composition, is China's traditional theory of criminal composition - that is, the four elements of criminal composition. The doctrine was formed in the early years of the founding of the country, directly from the former Soviet Union's theory of criminal composition. Over the years, the doctrine has played an important role in the construction of China's criminal legal system. However, with the progress of the times and the development of society, especially the gradual deepening of China's criminal law theory research, the traditional dominant theory of criminal composition of the inadequacy of the gradually exposed. As a result, many scholars in the field of criminal law began to criticize and reflect on the traditional theory of criminal composition. Summarizing the current situation, it can be tentatively concluded that: in the vision of young and middle-aged scholars of criminal law, the traditional theory of criminal composition has been transformed on a larger scale; the traditional four elements of criminal composition has begun a new transformation. In front of the reality of the fate of the traditional theory of criminal composition will be "old look for a new look", to review and summarize the various criticisms and reflections, which will help us to deepen the criticisms and summaries.

China's criminal law to determine the establishment of crime specifications and standards is the criminal composition. And the criminal constitution refers to China's criminal law, determines a specific behavior to establish a crime necessary for all the subjective and objective elements of the sum. Therefore, in China's criminal law, the three concepts of "criminal composition", "constituent elements" or "elements of criminal composition" are often used interchangeably, without strict distinction. In this way, no matter our criminal law use "criminal composition" or "constituent elements" or "elements of crime" concept, its connotation and extension are the same as the civil law system of criminology in the "constituent elements". Constituent elements" is different from the civil law system of criminology, "the appropriateness of the constituent elements" of the "constituent elements": the former is the generalization of all the elements of the establishment of the crime, the latter refers to the establishment of the crime of only one of the three elements - the appropriateness of the constituent elements. -The former includes all the legal elements of the legal effect of the penalty of a certain act, and is therefore a sufficient condition for the establishment of a crime; the latter is only one of all the conditions for the establishment of a crime, specifically, one of the three elements, and is a prerequisite, but not a sufficient condition, for the legal effect of the penalty of a certain act. Only when the premise of the appropriateness of the constituent elements is met, and after the additional judgment of illegality and culpability and a positive conclusion is reached, the crime can be considered to be established.

China in the criminal composition of the existing defects are mainly manifested in the following two aspects:

One, on the number of elements of criminal composition

On the composition of the criminal composition of a few elements, in addition to four elements of criminal composition, there are the following points of view: the negative, two elements, three elements, five elements.

The so-called negative, that there are only specific elements of criminal composition, but there is no general elements of criminal composition. The so-called two elements, that is to say, that the elements of the crime only includes the objective elements of the crime and the subjective elements of the crime two major elements. For example, Professor Chen Xingliang believes that the elements of crime include the body of the crime and culpability. Professor Qu Xinjiu believes that "crime consists of a series of legal elements, is a series of legal elements of the whole, a variety of specific criminal elements of this whole, can be abstracted into two basic aspects - objective factual elements and subjective psychological elements, which are indispensable to all crimes. These two aspects are indispensable to all crimes." The so-called three-element theory includes two more specific views. One point of view is that the subjective and objective aspects of a crime are inextricably linked as an organic whole, and that if the subjective guilt of the perpetrator is included in the harmful act, it is impossible to correctly solve the problem of criminal law causation, and therefore it is advocated that the two be combined into a single element, i.e., "socially dangerous act". Another viewpoint is advocated by Prof. Richard Zhang. According to Prof. Zhang, the so-called object of crime, i.e., legal interest, should not be an element of crime at all. Professor Richard Zhang first argued in his master's thesis "On the Criminal Composition of Criminal Law in China" and his book "Principles of Criminal Theory" that the object of crime should not be a constituent element of crime. Later on, in his two books Criminal Law (above) and The Preliminary Theory of Legal Benefits, he once again made further arguments and explanations for his viewpoints. According to Prof. Zhang Mingkai, the object of crime refers to the legal interests that are protected by China's criminal law and violated by criminal acts. The meaning of crime object has been included in the general concept of crime. The relevant provisions of China's criminal law state the object of crime precisely in the concept of crime. The fact that an act conforms to the objective, subjective and subjective elements of a crime indicates not only that the act violates certain legal interests, but also what kind of legal interests the act violates. The legal interests as a constituent element of the crime, in fact, denies the substance of the objective, subjective and subjective elements of the crime stipulated in China's criminal law, it seems that the social harmfulness of the crime is only determined by the object of the crime. Asserting that the object of the crime is not a constituent element does not bring difficulties to the determination of the crime. A criminal act violates what legal interests, by the crime of objective elements, subjective elements, and subjective elements and the facts in line with these elements of the comprehensive decision; distinguish between this crime and other crimes, the key is to analyze the subjective and objective aspects of the characteristics of the crime. If we leave the subjective and objective aspects of the characteristics of the object of the crime alone to determine the nature of the crime, is going to hit a wall. The so-called five elements, that is to say, that the criminal constitution includes criminal behavior, the object of the crime, the objective aspects of the crime, the subject of the crime, the subjective aspects of the crime five elements. This view is actually that the criminal behavior should be one of the elements alone, and the objective aspect of the crime only includes the result of the crime and its causal relationship with the criminal behavior. Hope to adopt, hope to adopt.