According to the general understanding, when a crime is committed, it is implemented. However, starting from the law, it refers to the result that the perpetrator begins to commit harmful acts that meet the specific constitutive requirements of the crime and have constitutive requirements. Judging the beginning of a crime is of great legal significance, because it determines when to start a crime, and it is also an important symbol to distinguish between criminal preparation and attempted crime. Starting a crime shows that the crime is not in the preparatory stage, but a "prelude" to starting a crime. However, it doesn't mean that the hand is the end point of crime preparation, nor does it mean that the hand is independent of the crime stage of execution and preparation, but an action or behavior closely related to execution in time and space.
The act of execution is one of the most important concepts in criminal law theory. First, the constitution of various elements of crime in the specific provisions of criminal law is stipulated by the act of execution. For example, the crime of intentional homicide, its execution refers to "murder." Second, China's criminal law regards execution as an important symbol to distinguish preparatory crimes. When a crime is committed from the beginning, if it succeeds, it will be punished by the accomplished crime. If it fails, it is not considered as criminal preparation, but is punished by the attempted offender (provided that the attempted offender can be punished). Therefore, there is a great controversy about the theory of starting, and the practices of various theories in China's judicial practice are not uniform. How to make a clear judgment standard on the basis of analyzing different theories is an urgent problem we need to solve at present.
The first chapter is the implementation and analysis of the theory of starting work.
1. 1 subjective theory
Subjectivism is the theory adopted by subjectivism crime theory, which holds that when an act shows the dangerous character of a traveler, or when the intention of the actor is clearly defined externally, it is implemented (Konoha Ying Yi); Some people say that when the table moves, the jump of intention begins (Hideo Miyamoto); Some people say that the behavior shows that the criminal intention is certain before it can start (Kimura Kamei). [3] However, the various theories of subjective theory do not really provide a standard for judging the crime. In practice, people can't accurately grasp what is "clear criminal intent" and what is "leap forward of criminal intent". In addition, according to the standards of subjectivism, it is easy to lead to the advance of time or space when judging crimes. For example, burglary, it is obviously unreasonable to consider it as theft just by breaking the window glass. Therefore, it was criticized.
1.2 objective theory
Objectivism advocates that the criminal's behavior is harmful to legal interests, not subjective intention. Objectivity theory mainly includes two schools, namely, formal objectivity theory and substantive objectivity theory.
(1) In the theory of formal objectivism, the standard of judging litigation is determined by the constitutive elements of crime. According to this theory, as long as the actor formally begins to implement the behavior specified in the constitutive requirements, it constitutes implementation. We usually hold this view in the law textbooks we have studied in universities: "The so-called crime has been committed, which means that the perpetrator has begun to commit the criminal acts in the specific elements of the criminal law. For example, in the crime of intentional injury, the act of intentionally and illegally hurting others' bodies and reaching a certain degree of seriousness. [4] The main shortcoming of this theory is that it does not really define what is the beginning, but explains the concept by concept. In addition, there are many problems in the theory of formal objectivity, which will be explained in detail below.
⑵ The objective essence view holds that the criteria for determining the start of a crime should be based on the punishability of criminal acts. Although scholars have not formed a completely unified opinion on this theory, we usually think that the reason why we judge according to the punishability of an act is because in punishment, an act is punished because it has caused actual infringement or potential threat to legal interests, so when a criminal act makes the law benefit from danger, it can be considered as the beginning of litigation. As for the understanding of danger, some scholars think that criminal behavior itself is dangerous, which is the theory of substantive behavior. Some scholars believe that an act is beneficial to the law in the state of potential infringement. This is the theory of substantial results. For example, Tengmu, the hero, thinks: "When an act that is considered as threatening in reality exists at a stage very close to the act itself or implementation, it is implemented." Substantial behavior theory basically attaches importance to the valuelessness of behavior. Consequentialism emphasizes that results are worthless. Generally speaking, there is no big difference in conclusion between the two viewpoints. Substantive objectivism is the mainstream of Japanese criminal law theory and trial practice at present.
The second chapter judges the disadvantages of the theory of beginning to understand in judicial practice.
2. 1 Determination criteria
This paper holds that the theory of formal objectivity has some defects, such as unclear definition of initiation and unclear criteria for determining initiation. In the determination of starting, we should adhere to the theory of substantive objectivity, that is, to judge whether a crime is started, we should combine the subjective intention of the actor with the standard of whether the objective behavior poses a danger to legal interests, and truly and reasonably reflect the harm caused by the crime to society, which is more feasible in guiding judicial practice. Next, on the basis of analyzing the problems existing in the theory of formal objectivity, the rationality of the theory of substantive objectivity is explained.
2.2 Problems in the theory of formal objectivity
China's litigation theory actually adopts the standard of formal objectivity, which seems reasonable, but there are many vague definitions and disadvantages in the theory itself, which are not conducive to guiding judicial practice, and the disadvantages of the theory cannot be ignored. First of all, the definition of beginning is vague in the theory of formal objectivity. Conforming to the constitutive requirements of crime is the main point of view, but what kind of behavior conforms to the constitutive requirements of crime? I can't answer this question. According to the theory of criminal law, the most basic source of crime constitution is to protect interests. The theory of objective formalism is divorced from the essence of protecting interests, which will inevitably lead to the empty theoretical framework and the result that it cannot guide judicial practice. Secondly, the starting standard advocated by the theory of formal objectivity is vague. This theory can not provide a standard for the definition, because "whether the constituent elements are necessary or not, according to strict or loose interpretation, there will be very different conclusions." If someone walks in the street with a gun, when should he be found guilty of intentional homicide? Aim or pull the trigger? Formal objectivity cannot provide a standard for such cases, so from which point should it be defined? Third, according to the standard of formal objectivity, the judgment of certain behaviors will be postponed. When criticizing the objectivity of form, Hirano Ryoichi once said, "The execution of killing is to pull the trigger, and only aiming is not the beginning; Theft is carried out when the hand reaches for the property, and it is not the beginning to be close to the property. This really makes the scope of the attempt too narrow. "
The third chapter is the rationality of the theory of substantive objectivity and its application in judicial practice.
3. 1 Rationality of the theory of substantive objectivity
The author believes that the theory of substantive objectivity is more reasonable than other theories and should be encouraged and advocated in judicial practice.
First, the theory of substantive objectivity is conducive to correctly distinguishing crime preparation from attempted crime. According to the theory of substantive objectivity, the key to distinguish crime preparation from attempted crime lies in the urgency of the danger faced by legal interests. For crime preparation, the danger of infringement of legal interests is imminent and urgent, while for attempted crime, the danger of infringement of legal interests is not so urgent. Therefore, aiming at or following a gun can be clearly defined according to the substantive objectivism, while the formal objectivism cannot accurately divide this issue due to its own theoretical defects.
Second, it is helpful to correct conviction and sentencing. Our common criminal acts, such as murder and injury, are usually classified as simple crimes in the specific provisions of criminal law. However, in judicial practice, things such as "robbery" have their specific behaviors and situations, which cannot be summarized by abstract concepts such as "robbery". Therefore, objectively speaking, the analysis of this kind of crime can only be superficial and can't touch the key to implementation. Therefore, in actual cases, when and what kind of behavior will cause urgent and realistic danger to legal interests should be considered comprehensively according to specific circumstances; Such as whether the perpetrator has started to use criminal tools, whether the perpetrator has started to use the created conditions, etc.
Third, it helps to guide specific problems in judicial practice. The theory of objective entity can clearly define the criteria of starting judgment in judicial practice. It should be said that it is the key to judge whether it poses an imminent danger to legal interests. For example, someone wanted his colleague to die, so he suggested that he go for a walk in the Woods on rainy days, and then his colleague was electrocuted after doing so. In this case, it is obvious that he did not commit murder intentionally, because his persuasion has no immediate real danger to the life safety of his colleagues. Therefore, once divorced from the judgment of the nature of the infringement of legal interests, it is impossible to accurately judge and identify the act of starting.
Therefore, the act of committing a crime embodies the unity of the specific elements of the crime. Only by combining the subjective intention of the actor with the objective act of committing a crime can we accurately identify the act of committing a crime. The combination of subjective and objective features reflects the social harmfulness and degree of crime as a whole, and also provides a general standard for identifying crime.
3.2 Application of Substantive Objectivity Theory
The theory of substantive objectivity is reasonable for determining when to start, and can provide a more concrete and reasonable theoretical basis for case adjudication in real life. In 2004, in order to repay a high gambling debt and defraud insurance money, the defendant Zeng asked his friend Li to cut off his hand and promised him a large sum of benefits. After that, the two men determined the specific part of the foot chop and prepared tools such as machetes. Defendant Huang cut off Zeng's ankle with a machete he carried with him. After Li cut off his hand, he called the police at 1 10, and was robbed by the insurance company to claim compensation.
In the above-mentioned cases, there are two views about when the defendant Zeng started to carry out the act: the first view is that the act of cutting off his feet by Zeng and Huang constitutes the crime of insurance fraud; The second view is that Zeng and Huang's acts of preparing tools for committing crimes and committing injuries belong to preparatory acts, and only by reporting claims to insurance companies can they constitute insurance fraud. The author believes that the second view is obviously more in line with objective reality. When preparing the tools for committing crimes to carry out injuries, it did not infringe on the object of crime, that is, the national insurance system and the property of insurance companies, but only when reporting and claiming compensation, it had a direct practical impact. It is more reasonable to start after the behavior is implemented and the claim is declared.
conclusion
To sum up, subjective theory and objective theory are the fusion of subjective theory and objective theory, but the emphasis is different, and both have their own defects in theory. Therefore, our country should be based on the theory of substantive objectivity, with the imminent danger of legal interests as the standard, supplemented by general theory. In judicial practice, we should first identify the scope of constitutive elements of crimes such as murder and theft, and prevent non-executive acts from being treated as executive acts. Then, according to whether the acts pose imminent real danger to legal interests, such as holding guns and aiming at them, we should take them as the criteria for whether the acts begin. Criminal behavior is the organic unity of subjective and objective. In concrete judicial practice, each case has its diversity and complexity. Therefore, we should make corresponding judgments from the subject, time, place and object of the act, so as to better guide judicial judgment and realize the purpose of protecting human rights in criminal law.
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