The reading notes of criminal law articles are about 2000 words.

Recently, I read the book The Basic Position of Criminal Law by Professor Zhang Mingkai. This book was published by China Legal Publishing House in March 2002, with a total of 365,438 words. According to the summary of the contents of this book, this book aims to promote the formation of the dispute between criminal law schools in China. Taking the dispute between criminal law norms and schools as the main line, the author has conducted in-depth research on major issues of criminal law, showing basic positions: objectivism, substantive hermeneutics, result axiology, objectivism of attempted crime, combined punishment for several crimes and integration theory.

After reading the whole book, the general feeling is that this book is a very distinctive theoretical work in the field of criminal law. Its main feature is to comprehensively expound the author's basic viewpoints, and from his own basic standpoint, explain specific legal provisions and discuss specific difficult problems. When demonstrating the rationality of one's own specific viewpoints, we attach great importance to the consistency of the positions before and after and the harmony of one's own theoretical system, so as to avoid drawing concrete conclusions of opposing positions. This is rare among domestic criminal law scholars. In the process of studying criminal law, most scholars basically start from the facts, first form a series of specific viewpoints, and then, when all aspects of knowledge have reached a certain level, initially form a theoretical system of criminal law with certain characteristics, and this system has rarely been deliberately combed and confused by itself, and even can not form a unified criminal law position for a lifetime. In this respect, Professor Zhang Mingkai is deeply influenced by German and Japanese criminal laws. He paid attention to summing up his basic starting point and studying the most basic theoretical problems in the field of criminal law. When his thoughts were relatively mature, he showed a theoretical tendency, so he had a theoretical home at the peak of academic research, which was the first in criminal law circles. Of course, whether it is necessary to have a clear theoretical position, at what research stage to form their own theoretical system, and whether China's criminal law scholars need a criminal law school as opposed to Germany and Japan are still inconclusive and need historical test.

After reading Professor Zhang Mingkai's book, I haven't formed my own views on these issues. Combined with several years of study experience, I vaguely feel that what kind of basic position a criminal law scholar takes needs years of accumulation and repeated thinking. Under the current research situation in China, I'm afraid there are not many scholars who can summarize the basic position. Only a few senior scholars have gradually formed a theoretical system after years of exploration. For a young scholar who has just started, it seems inappropriate to set a subjective or objective framework for himself with preconceived ideas. This may tie your hands and feet, but it is not conducive to opening your mind and finding the basic position that he really agrees with.

The first part of this book is a comparative analysis of the old school and the new school of criminal law. At the same time, the characteristics of theoretical research in criminal law circles in China are discussed. The author believes that, on the whole, although China's criminal law theory has always claimed to adhere to the principle of the unity of subjective and objective, it is not essentially different from the subjectivist view that attaches importance to subjective content and mentality.

The second part of this book is a comparative analysis of objectivism and subjectivism in the theory of crime. While weighing the advantages and disadvantages of the two, the author shows his basic position of objectivism. Moreover, judging from the changes in the legislative ideas of the old and new criminal laws in China, the old criminal law more embodies the subjective criminal law theory, while the new criminal law tends to be objectivism. The author appreciates the objectivism legislative attitude of the new criminal law, and at the same time criticizes the strong subjectivism contained in the traditional theory.

The third part of this book discusses how to explain the elements of crime. The author comprehensively discusses formal hermeneutics and substantive hermeneutics, indicating that he is inclined to substantive hermeneutics. In my opinion, substantive hermeneutics focuses on the nature of crime, which is conducive to determining the reasonable scope of crime, thus making the research deeper and closer to the original intention of legislation. From the standpoint of criminal law, the author advocates substantive explanation, which is closely related to the author's view that the essence of crime is the infringement of legal interests. Between the formal concept and the substantive concept of crime, it is obvious that the author pays more attention to the substantive concept of crime, that is, the infringement of legal interests.

The fourth part of this book is about the comparative analysis of result axiology and behavior axiology. Because the author insists on objectivism and thinks that the infringement of legal interests is the essential feature of crime, he will naturally choose the result axiology between the result axiology and the behavior axiology. In my opinion, advocating the theory of outcome value is conducive to reasonably controlling the scope of crime, protecting the legitimate rights and interests of citizens, and making acts without actual harmful results not subject to criminal sanctions. In addition, when judging whether a proper act is established, its objective harmful result is an important judgment index. In emergency avoidance, when the damaged legal interest is the same as the evaded legal interest, according to the theory of valueless result, the legal interest is not damaged, so it cannot be regarded as a crime. As for the objects and tools that have always been advocated to be dealt with by the theory of attempted crime in traditional theory, the author believes that according to the theory that the results are worthless, these acts can not cause actual objective harmful results at all, and have no harm to legal interests at all, so they can not be dealt with by the theory of crime.

The fifth part of this book is the objective theory and subjective theory of attempted crime. The author believes that the new criminal law essentially adopts the objective theory of attempted crime. The author tends to the objective theory of attempted crime between the two. Based on this basic position, the author puts forward a series of new views on the determination of the form of crime cessation. The criteria for determining the accomplished and attempted cases advocated by the author include more objective behaviors, especially the actual harmful results and risk factors, which are very different from the traditional theory with strong subjectivism.

The sixth part of this book is about the theory of * * * and crime. The author discusses the * * * identity theory of crime and the * * * identity theory of behavior, and shows the position of agreeing with the * * * identity theory of some crimes. The author believes that when several actors intentionally infringe on a legal interest at the same time based on different crimes, the overlapping part between different criminal constitutions can constitute the same crime. In the case that the crime instigated by the instigator is inconsistent with the crime committed by the instigated person, an accomplice can also be established within the scope of the overlap between the instigated crime and the actual crime.

The seventh part of this book is the * * * subordination and * * * of * * accomplice in the theory of * * * accomplice. The author discusses the meaning of * * offender's subordination theory and * * offender's * * theory, and evaluates the * * offender's subordination theory, * * dualism and * * offender's * * theory advocated by some scholars in criminal law circles in China. The author thinks that these theories do not conform to the basic meaning of subordination theory and * * theory in criminal law and are not desirable. In the theory of * * * crime, the author insists on the position of neither * *, nor subordination, nor duality.

The eighth part of this book is about the basic theory of punishment. The author discusses the combination of absolutism and relativism, as well as the theory of compromise, which shows his basic position of leaning towards integration. It is also believed that the new criminal law adopted by 1997 embodies the amalgamation as a compromise.

After reading this book, I think the most valuable thing is the author's harmonious and unified thinking when discussing basic theoretical issues and the overall situation when studying specific issues. Of course, this does not mean that a unified and strict basic position is enough to ensure the scientific nature of specific conclusions. In fact, in the discussion of many specific problems listed by the author, we can often see simple reasoning under the guidance of abstract theory to explain our basic position, which directly affects the scientific nature of the final conclusion. These phenomena mainly appear in some problems briefly discussed by the author, but the discussion on the abettor and the attempted crime in the form of suspension in the accomplice crime is more detailed and can stand scrutiny.

From my own theoretical background and academic experience, it is difficult to make an overall evaluation of this book. Although I have occasionally experienced the basic categories of criminal law mentioned by the author in the book, it seems that I haven't been able to delve into their advantages and disadvantages, and I haven't formed my so-called basic position in my mind. When considering specific issues, I often swing between two levels in order to achieve a certain balance that reflects justice. However, I can't help wondering whether this ideal balance exists and how to achieve it. So as far as my own academic ability is concerned, I can only comment on some of these issues, mainly those I have considered at ordinary times. Among the basic categories of criminal law discussed by the author, I am most interested in the concept of legal interest. The author strongly advocates the concept of legal interest as the essential feature of crime, and directly guides the reasoning process of criminal law interpretation, and even resolutely implements the concept of legal interest in the evaluation of tool impossibility. I quite agree with that. In my previous studies, including writing my master's thesis last year, I was thinking about the importance of legal interest (criminal object) in criminal law theory. I deeply feel that there is no research object in the theoretical circle, especially the object of a specific crime in a theory, and the significance of legal interests is rarely considered when studying the constitutive requirements. The concept of legal interest advocated by Professor Zhang Mingkai has strong pertinence and is worth advocating. Professor Zhang wrote in the book: "Because the essence of crime is to infringe on legal interests, a substantive explanation of the constitutive elements of crime is to give full play to the function of legal interests as the object of interpretation of the constitutive elements of crime. That is, the conclusion of the interpretation of the constitutive elements of a crime must make the behavior that meets the constitutive elements of this crime really infringe on the legal interests protected by the criminal law, so as to achieve the purpose of stipulating this crime and establishing this article in the criminal law. " (page 128) I feel that there is an atmosphere of contempt for legal interests in both judicial practice and criminal law theory. In fact, it is understandable that the judicial practice circles despise legal interests. After all, the practice is based on the existing norms, and there seems to be little room for free play. Moreover, the legal interest itself is too abstract, the theoretical research is insufficient, and there are vague or even wrong provisions in legislation, so it is difficult to choose and have to stay away. The theoretical circle of criminal law should undertake this task, and it seems more beneficial to solve the problem by considering specific problems from the perspective of legal interests. For example, the problem of litigation fraud has been discussed a lot in the theoretical circle. When studying what kind of crime should be identified, it seems that it is more based on the usual way of thinking, first find out the possible crimes, and then analyze whether they meet their constitutive requirements respectively. This way of thinking is very effective in practical departments and is conducive to solving specific cases quickly.

However, when doing pure theoretical research outside legislation, we might as well start with the essential characteristics of the act, analyze which social relations it mainly infringes, then weigh the importance of these social relations and determine the nature of the crime according to legal interests. After immature thinking, I think that litigation fraud infringes on the property ownership of the losing party, which is beyond doubt, but the more serious infringement of legal interests occurs in the course of litigation. The actor's fabrication of facts and perjury directly infringes on the judicial authority of the judicial organs, which should belong to the category of obstruction of justice. There may be no corresponding provisions on the crime of false accusation and perjury in the existing civil procedure, but this is a problem of perfecting legislation and should not be the basis for denying its criminal nature. [1] Of course, I didn't make such an assertion after careful consideration, even if it can't stand scrutiny.

Of course, the concept of legal interest advocated by Professor Zhang should also be analyzed and screened in detail, and some of the conclusions are unacceptable to me. For example, when Professor Zhang discusses the measurement of legal interests in emergency hedging, he thinks: "When the interests of Party A with a value of1100,000 yuan conflict with those of Party B with a value of1100,000 yuan, the only effective way to protect Party A's interests is to harm Party B's interests. On the whole, the hedging behavior implemented by the actor has not actually caused new damage to legal interests. Even if the actor sacrifices the equal interests of others for his own benefit, it is only a moral and civil responsibility and cannot be investigated for criminal responsibility. " In my opinion, this argument is wrong from the reasoning process to the final conclusion, and it does not conform to the concept of legal interest advocated by Professor Zhang. The measurement of legal interests should be concrete, because it is an undeniable fact that every specific legal interest has a specific undertaker after being infringed. The basic starting point of advocating the protection of legal interests is to fully protect the specific legal interests of social individuals from infringement, so it is inconsistent with the concept of legal interests to evaluate the infringement of legal interests as a whole. In emergency avoidance, the legal interests that are ultimately infringed exist objectively, and it cannot be considered that no legal interests are infringed just because the same legal interests are avoided at the same time. Because as an innocent third person, his legal interests are protected by criminal law, and infringing on his legal interests may constitute a crime. Emergency avoidance does not constitute a crime in the end, not because the actor did not infringe any legal interests, but for a reason. Considering that the actor does not have serious personal danger, it is a kind of tolerance of human weakness in criminal law. Therefore, sacrificing the equal legal interests of others is essentially infringing on the legal interests of others. The behavior at this time is intolerable in criminal law. Since harming the legitimate interests of others cannot reduce the total loss, why harm the legitimate interests of others? You can bear the same loss yourself. Therefore, the reasons for extra-legal goodwill are not sufficient. In principle, it should be punished as a crime, but it should be dealt with lightly. If we deal with it according to Professor Zhang's point of view, when equal legal interests are personal rights, its irrationality is even more obvious. Isn't it a crime for a person to kill another person to avoid his own death? Isn't the victim's life a rare legal interest that has been violated? In this case, what right does the actor have to pass on the result of death to others? If the perpetrator's killing behavior is an emergency at this time, the victim has no right to defend, and the act of protecting his life may constitute an intentional crime. How to reflect the fair value of criminal law?

In this book, I am more interested in the theory of the identity of some crimes advocated by Professor Zhang. The theoretical basis of this theory is that "two or more people jointly commit different crimes, but when these different crimes have the nature of coincidence, the crime of * * * is established within the limit of coincidence" (page 262). The emergence of this theory is mainly to solve the problem of criminal responsibility of concurrent offenders and the problem of criminal responsibility when * * * is inconsistent with the final charges of the actors in the crime. Generally speaking, I hold a negative attitude towards some crimes, which will be analyzed separately below. Some crimes are mainly used in the following aspects:

1. Several people commit similar crimes at the same time. "In the case that Party A intentionally kills people and Party B intentionally hurts Party C, only within the scope of the crime of intentional injury can the crime of * * * be considered. However, because A has the intention and behavior of killing people, A should be considered as intentional homicide. " (page 262) This kind of behavior is a joinder in the general sense. According to the traditional theory, a co-opetitioner is not established because it is not intentional, and is convicted and sentenced separately. In fact, the behavior of the actor plays an important role in the criminal behavior of other actors, and the complementary synergy of several behaviors exists objectively. It seems that the conviction only based on their respective behaviors can not explain the seriousness of this joint infringement, nor is it conducive to cracking down on the phenomenon of fishing in troubled waters in practice. However, I don't agree with some charges. In my opinion, the theory of crime should be used to re-examine the joinder of offenses. The so-called joinder can be divided into premeditated joinder and impromptu joinder. For a premeditated joint crime, although several actors have not reached the same intention in a specific crime, they all know each other's intention and know how to help them commit another crime. Therefore, one crime can be committed and at the same time constitute an accomplice of another crime, unless there is no objective connection between several criminal acts, that is, there is no practical help effect between several acts. And some crimes refer to several crimes with overlapping constitutive elements, which are definitely related. At this point, the actor's attitude towards the result of helping others should be laissez-faire. In this way, each actor has two crimes, the perpetrator of this crime (direct intention) and the helper of other crimes (indirect intention), and the imaginative competition is established. For a joint crime without premeditation, it is also possible to form a helping intention when committing a crime, and to establish a helping crime for other crimes; Or it is the result of laissez-faire, helping others to commit criminal acts in order to commit their own criminal acts. At this time, the one-sided helper may be established, and the psychological attitude towards the one-sided helper is indirect intention. In the final form of the number of crimes, it may constitute an imagination contest.

In fact, the conclusions of several theories are similar, and the crime committed by the actor is the final conviction. The difference is that the reasoning process is different and the number of crimes is different. When there are harmful results different from typical components, differences are displayed. For example, Party A and Party B intentionally hit C by killing or injuring, while Party A hit C in the head and missed, while Party B hit C in the thigh, and the femoral artery broke, resulting in C bleeding to death. A's behavior is essentially intentional attempted murder, and B's behavior is essentially intentional injury to death. According to the theory of * * * partial crime, where is the overlapping part of the constitutive elements of the two crimes? Heavy behavior only leads to light results, and light behavior leads to heavy results. What is the scope of establishing an accomplice? I'm afraid it can only be established within the scope of intentional injury (excluding fatal results). However, this * * * criminal charge does not apply to both A and B. In my opinion, it is more appropriate to think that A constitutes the imaginary competition between the attempted intentional homicide and the helper of the intentional injury, and B constitutes the imaginary competition between the helper of the intentional injury and the attempted intentional homicide.

2. In the case of transformed crime. "A invited B to pay attention to his theft; B agrees and goes to C's house to keep watch as agreed; But when A commits theft, he will use violence on the spot to hide the stolen goods ... and B knows nothing about it. ..... If part of the crime * * * is said together, then A and B will be guilty of the same crime within the scope of theft * * * ... For B, criminal responsibility must be investigated for theft, but because A's behavior is another kind of robbery, A's behavior can only be recognized as robbery. " (page 269) I totally agree with this conclusion. However, in my opinion, not only the partial theory of crime can draw such a conclusion, but also the traditional theory of crime can draw such a conclusion. The * * * accomplice crime stipulated in Article 25 of the Criminal Law can be manifested as the final conviction charge or the staged * * * accomplice crime form formed in the criminal process. In the above example, B's help behavior and A's implementation behavior constitute the same theft, no matter from the subjective aspect of * * * and theft intention, or from the objective aspect of * * * and theft, there is no problem. The reason why it was not recognized as the same crime in the end was because A took a step forward on the basis of constituting theft, thus turning his previous theft into robbery. From the development process, A's burglary behavior is inseparable from B's outdoor lookout behavior. You have me and I have you. The violence committed after A belongs to the excesses in the same crime and is solely responsible for it. It's just that in general, over-limit behavior leads to several crimes, but there is little discussion on those that are converted into felony because of over-limit behavior. According to the theory of * * * with crime, the constitutive elements of theft are the overlapping part of theft and robbery, so * * with crime is established within the scope of theft. In fact, this is to regard A's theft as robbery and B's lookout to help A's theft as two kinds of * * behaviors, deny the fact that * * * once existed objectively, then compare the constitutive elements of the two crimes abstractly, think that the constitutive elements of theft are overlapping parts, and then think that they are established as the same crime within the scope of theft, which is not in line with the actual situation of the case development process. In addition, the overlapping part of the constitutive elements of the two crimes is not easy to judge. In fact, theft and robbery are just different behaviors, and we can't simply draw the conclusion that theft plus violence equals robbery.

3. In the case of attempted instigation. This mainly means that the crime committed by the abetted person is not an abetted crime, but a crime related to it. "According to some crimes, as long as the crimes committed by the abettor include the crimes instigated by the abettor in the normative sense, then in the part where the nature of the two crimes overlaps, the abettor and the abettor will commit the same crime. On the one hand, the second paragraph of Article 29 of the Criminal Law cannot be applied to instigators; On the other hand, instigators should be punished according to their role in the same crime. " (p. 283) The author thinks that if A instigates B to steal and B turns to robbery in the process of theft, then robbery includes theft, so an accomplice is established within the scope of theft, A is identified as theft and B as robbery. I agree with this conclusion, but I think it is entirely possible to draw this conclusion according to the traditional theory of "crime * * *" for the same reason as the second case mentioned above. Because the accomplice crime was established when B's behavior developed to the stage of theft, and the content of A's instigation was realized, both Party A and Party B could be identified as theft at this time. Therefore, although the charges of Party A and Party B are different in the end, Party B should still be deemed to have committed the crime instigated by Party A, so the second paragraph of Article 29 cannot be applied to Party A. ..

On the other hand, if the abetting crime includes the crime actually committed by the abetted person, how to deal with it? According to the theory of * * * with crime advocated by Professor Zhang Mingkai, * * with crime is still established within the scope of the actual crime, and the perpetrator is treated as this crime, while the instigator is regarded as a felony. "If Party A instigates Party B to commit robbery, and Party B only commits theft, then although it can be concluded that Party A and Party B commit the same crime within the scope of theft, since Party A's behavior should be considered as robbery, and Party B's behavior does not include robbery, the provisions in the second paragraph of Article 29 should still apply to Party A" (note 1 on page 283). I also agree with this conclusion, but I don't recognize the basis of this argument. Part of the accusation that * * * constitutes an * * accomplice within the scope of theft without any basis has completely divorced from the foundation of the existence of * * * accomplice. Subjectively, the two sides do not agree on the identification of theft. Objectively, only B committed the theft, and A knew nothing about it. Without subjective and objective conditions, how can theft be the same crime? Professor Zhang is only based on the concept of the relationship between inclusion and inclusion in the constitutive elements of each crime, and there is no factual basis for the determination of * * * and crime, which will lead to many contradictions. Since it is found that A and B commit the same crime within the scope of theft, both of them must be punished as theft, and at the same time, because A instigates robbery, A is identified as robbery. So where is A's theft, and why is it only punished as robbery? There is only one act of abetting robbery in A, and there is no transformation from theft to robbery. Therefore, according to the * * * theory of partial crimes, it seems that A should constitute the imaginative concurrence of robbery and theft, and this conclusion is obviously even more unacceptable. It can be seen that the overlapping parts of the constitutive elements referred to in the theory of * * * of some crimes are conceptual and illusory, and sometimes the specific charges of the instigator can be determined, and sometimes the charges of the instigated person can be determined.

In my opinion, under the above circumstances, there is no accomplice crime at all, it is a separate crime in the form of instigation and another crime in the form of separate behavior. Paragraph 2 of Article 29 shall apply to instigators. This is also the original intention of this provision. Paragraph 1 stipulates the criminal responsibility of instigators in joint crimes, and paragraph 2 stipulates the criminal responsibility of instigators in individual crimes. There is no essential connection between the abettor and the abetted person's behavior, and there is no objective and subjective basis for constituting an accomplice crime, so it cannot be established. The abettor is convicted of a crime because the abetting behavior of * * conforms to the revised constitution of the crime, and the second paragraph of Article 29 [2] shall apply. The instigated person was convicted of the crime he actually committed.

To sum up, I think the theory of * * * and some crimes advocated by Professor Zhang Mingkai mainly has two defects: First, the identification of * * * and crime is too idealistic, only considering the relationship between the constituent elements of different crimes, ignoring the actual process of criminal behavior; Second, it is sometimes difficult to define the overlap between the constituent elements. It is difficult to choose between the above-mentioned attempted intentional homicide and intentional injury and death. In addition, it is not satisfactory to say that robbery includes theft, so what is the inclusive relationship between theft and crimes against property such as fraud and extortion? I'm afraid it will be clear soon.

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[1] From the constitutive requirements of fraud, I also think that litigation fraud cannot constitute fraud. In fraudulent activities, it is very common that the victim is the same person as the person who actually controls the property. Of course, it can be different. Under different circumstances, I think that in order to establish the crime of fraud, there must be a trust relationship or similar personal relationship between the actual controller of the property and the deceived person, so as to form a collection of interests. That is to say, the actual possessor delivered the property according to the instructions of the deceived person, and he did not bear the loss himself or had the right to claim compensation from the deceived person or share the loss with the victim. Litigation fraud does not have these characteristics. The court obtained the property from the victim according to the state's coercive power, in fact, it was deceived by the actor and forcibly deprived the victim of the property right by virtue of its own public power. The court actually does not possess property, and there is no property relationship or personal relationship with the victim. Similar to this kind of behavior, Party A, as a third party of * *, was deceived by Party B, demanding that Party C pay off debts that did not exist to Party A, and threatening to take property from Party C by force. I'm afraid it's hard to be identified as fraud, because the deceived Party A and the lost Party C are in different roles, and there is no entrustment relationship between them in managing the property. Property is not so much cheated as robbed by swindlers.

[2] The stop form at this time, I think, should be the preparatory form of abettor. Only in this way can the instigator be investigated for criminal responsibility alone without committing a crime. Judging from the constitutive requirements of crime preparation, abetting others is the process of finding accomplices and creating conditions for crime, which should be regarded as crime preparation. In fact, the principle of dealing with article 29, paragraph 2, is similar to that of crime preparation, but it is slightly stricter and cannot be exempted from punishment. It can be regarded as a special case of severe punishment of crime preparation in the form of instigation in criminal law. Therefore, only the principle of handling in paragraph 2 of Article 29 applies, and it is not necessary to apply the principle of preparing for handling crimes in paragraph 2 of Article 22.

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