Behavior is the basis of criminal law, and the legal motto "No behavior, no crime" is widely circulated, which shows the decisive significance of behavior to the establishment of crime. However, with the development of criminal legislation, the extension of behavior continues to expand, such as possession and state of affairs are all included in crimes. In this case, the criminal law challenges the concept of behavior in theory, and the old adage that "there is no crime without behavior" is questioned. Based on the behavior theory in criminal law, this paper tries to defend the criminal law motto "no crime without behavior" in theory.

Ⅰ

Behavior is a law, but it is also a theory. In a sense, the criminal theory system is based on the behavior theory.

The concept of behavior in criminal law is said to have been introduced from Hegel's philosophy by the disciples of the German philosopher Hegel. (Note: radbruch, a German scholar, pointed out that the concept of behavior has never had a name or an intangible body, but just wandered in the system. Later, due to the disciples of Hegel's criminal law, the behavior was materialized. Today, the concept of behavior has occupied an important position in criminal law. This achievement is first attributed to Abegg, followed by ber ner and koostlin. See Xiong Xuanguo: Behavior in Criminal Law, People's Court Press, 1992, p. 53. Of course, Hegel expounded the concept of behavior in a philosophical sense, but it is still of great significance to the establishment of the concept of behavior in criminal law. (Note: Hegel believes that when the will is subjective or moral, it is behavior. Behavior contains the following rules: (a) When it shows, I realize that it is my behavior; (b) It is essentially related to the concept of behavior, because it should be; (c) It is essentially related to the will of others. When talking about crime, Hegel pointed out that the aspect of crime, as something derived from independent will and according to its way of existence in will, has become the problem we want to examine for the first time here. See Hegel: Principles of Legal Philosophy, translated by john young Zhang Qitai, Commercial Press, 196 1 Edition, p. 1 16. Therefore, Hegel emphasized that behavior is the externalization of human subjective will, and will is dominant for behavior. Hegel pointed out that in the action of the will, the will is limited to knowing what its purpose and intention contain in these assumptions, acknowledging that it is its behavior, and it should be responsible for this behavior. Action can only be classified as a fault of will. See Hegel's book cited above, page 1 19. Once the concept of behavior is established in criminal law, it becomes a basic category of criminal law, and a theoretical system of criminal law is established with behavior as the center, that is, the "unitary theoretical system of criminal law". With the gradual deepening of crime research, people's understanding of behavior has also developed, and thus the behavior theory has been launched. In the history of criminal law theory, there are the following influential behavior theories:

(A) Causal behavior theory

The theory of causal behavior was founded by famous German criminologists Liszt and Belinda. It is a kind of behavior theory formed by observing behavior in the physical sense, which is called naturalistic behavior theory. (Note: Causal behavior theory is based on positivism and observes human behavior in the sense of natural science. In this regard, Japanese scholar Ichiro Onoki pointed out that in this view of natural science, positivism and naturalism, behavior is the movement or stillness of the body, and subjective will is the domination of muscles by internal nerve stimulation. The scholar who expressed this view most clearly was Belinda. Fundamentally speaking, his concept of behavior still stays in natural science. This may be considered as a useful view of the (simple) behavior theory before the constitutive requirements, but in any case, it is still a reflection of natural science from the19th century. Even M. E. Meyer, who introduced the theory of behavior into the theory of constitutive requirements, stopped at the viewpoint of "body action = behavior, body stillness = inaction". See [Japan] Ichiro Onoki: On the Elements of Crime, translated by Yu Tai, China People's Public Security University Press, 199 1 Edition, p. 43. Causal behavior theory holds that behavior is the behavior that people's subjective will leads to some changes in the external world. Causal behavior theory regards behavior as a causal process from will domination to external change. Therefore, behavior has two characteristics: one is intentional and the other is tangible. Causal behavior theory emphasizes that behavior is based on certain will activities, but it thinks that this meaning itself does not belong to the category of behavior, but a question of responsibility, thus separating behavior from responsibility. Causal behavior theory focuses on the external changes caused by behavior, that is, results, and regards results as an integral part of behavior based on the position that results are worthless. Although the theory of causal behavior is mechanical, it strictly distinguishes between behavior and thought and has the function of distinction.

(B) the purpose of behavior theory

The theory of purposive behavior was founded by the famous German criminologist Wilzel, which is a kind of behavior theory formed by subjective observation of behavior, and is called purposive behavior theory. (Note: teleological behavior theory emphasizes the purpose of behavior, which is similar to Hegel's concept of behavior. Therefore, Chinese scholars point out that the theory of purposeful behavior adopts the framework of Hegel's concept of behavior and excludes the contents of illegality and responsibility. Haidong, Li See: Introduction to the Principles of Criminal Law (Basis of Crime Theory), Law Press, 1998, p. 27. Therefore, the teleological behavior theory takes subjectivism as its philosophical basis and observes human behavior in the humanistic sense. ) The viewpoint of purpose behavior can be summarized in the following sentence: Behavior is the realization of purpose. The theory of purposeful behavior emphasizes that people's subjective purpose dominates behavior, from worthless results to worthless behavior. (Note: Worthless behaviors and valueless results are the conclusions drawn from the angle of illegality. Causal behavior theory holds that the essence of illegality is the infringement and danger to legal interests, and emphasizes that the result is worthless; On the other hand, the theory of purposeful behavior regards intention as a constituent element of illegality, which not only infringes and harms legal interests, but also infringes and harms methods (behavior types and subjective elements), and is also the content of judging illegality. So the essence of breaking the law is that the behavior is worthless. See Xiong Xuanguo: On Behavior in Criminal Law, People's Court Press, 1992, p. 13. The theory of purposeful behavior abandons the view that causal behavior is a simple physical behavior, understands behavior in the sense of purposeful behavior and emphasizes its controllability.

(3) Social behavior theory

Social behaviorism was founded by the famous German criminal jurist E Schmidt. It is a behavioral theory formed by observing behavior in a social sense and is called normative behaviorism. (Note: Social behavior theory is also considered as a comprehensive behavior theory. China scholars pointed out: From the process of the emergence and establishment of social behavior theory, it can be seen that social behavior theory is actually a comprehensive behavior theory that combines the viewpoints of causal behavior theory and purposeful behavior theory. Although there are different opinions within this theoretical scope, one thing is consistent, that is, the legal and social significance of pursuing behavior. See Xiong Xuanguo: On Behavior in Criminal Law, People's Court Press, 1992, p. 16. Social behavior theory emphasizes the importance of evaluating behavior in a social sense, and introduces social evaluation factors into the concept of behavior. Therefore, social behavior theory holds that the concept of behavior includes the following three elements: one is materiality, the other is intentionality, and the third is sociality. Sociality here refers to social importance. According to the viewpoint of social behaviorism, to determine whether an act is established, all human actions (including actions and omissions), whether intentional or negligent, can be regarded as acts in the sense of criminal law as long as they are harmful to society and have social importance. On the other hand, if an act is meaningless to society and is not regulated by social norms, it cannot be regarded as an act in criminal law.

(D) Personality behavior theory

The theory of personality behavior was founded by Dleto Shigehikaru, a famous Japanese criminal jurist, and Oort Kaufman, a famous German criminal jurist. It is a behavior theory formed by observing behavior in the sense of personality formation. According to the theory of personality behavior, behavior is the expression of personality, which is implemented according to the attitude of the subject in the interaction between personality and environment. Personality is the realization of the subject; Personality is a potential embodiment, but it is actually a living activity and an act manipulated and implemented by the subject of personality. (Note: Japanese scholars believe that the theory of personality behavior is to grasp behavior from the perspective of "people", pointing out that the position of Dr. Tuanteng and Kaufman is to focus on the human existence of the actor and to define the meaning of behavior taking into account the deep level of his personality. I think it can be called personality behavior theory. Moreover, according to this position, actions and omissions, things based on intention and negligence can all be included in behavior, which is the great significance of taking people's behavior as the expression of their personality. See [Japanese] Da @ ① Ren: Translation of Basic Issues of Criminology, China University of Political Science and Law Press, 1993, p.31. By the way, Da @ ① Ren himself is also an advocate of the theory of personality behavior, and he had an exchange of ideas with the theory of personality behavior. For a detailed description, please refer to Japanese Criminal Law Scholars (I) edited by Li Haidong, Law Press, 1995.