First of all, the concept of crime in law is scientific in expression. The concept of crime in law was originally strict and scientific, but in the process of understanding it in criminal law and criminology, they all produced their own incomplete opinions, which led to differences. In other words, it is inaccurate and unscientific in understanding, which can be reflected in the interpretation of it by law and criminology.
The definition of law is: a crime is an act that is socially harmful, violates the criminal law and should be punished by punishment. In the teaching of criminal law, when explaining this concept, teachers usually point out three basic characteristics that constitute this concept to reveal its essence and significance. It is pointed out that social harmfulness is its essential feature, violation of criminal law is its characteristic of publishing legal papers, and punishment is its punishability or responsibility. There is nothing wrong with this understanding, but in the discussion, due to superficial understanding, there have been omissions, misleading the teaching object, especially the explanation of the latter two characteristics. First of all, the explanation of the characteristics of violating criminal law only emphasizes the violation of criminal laws and regulations, and does not reveal the deep-seated meaning behind the violation of criminal laws and regulations. In fact, violating criminal law refers to violating social relations protected by criminal law, such as the right to life, health and property ownership of social members. Violating these social relations is the essence of violating criminal law.
In fact, the concept of violating criminal law limits the concept of social harm to the scope of harmful acts stipulated in criminal law, because acts with social harm are complex and extensive, and are not limited to violating criminal law. At the same time, there are different degrees of harm, and the light degree does not necessarily constitute a crime, such as spitting. Secondly, the explanation of the characteristics of punishment only emphasizes the appropriateness of punishment and ignores the exemption. In particular, "should" is interpreted as "must".
Teachers often emphasize that the word "should" must be understood as "must" in law. In fact, if you think about it carefully, this understanding is not in line with the original intention of legislation. Because the word "should" is flexible in meaning, while the word "must" is not. The reason why legislation adopts the word "should" instead of "must" is that "should" has certain flexibility, allowing judges to make a flexible judgment of exemption according to the actual situation. It is precisely because of this that the decision to be exempted from punishment was made in the trial. Otherwise, if you use "must", you cannot be exempted from punishment or prosecution. This "flexibility" of judicial practice is not only conducive to distinguishing the different degrees of subjective malignancy of criminals from the severity of harmful consequences, but also conducive to criminals' repentance and rehabilitation. Therefore, it is extremely scientific and accurate to use "should" instead of "must" in legal provisions and legal definitions.
Second, the concept of crime in law is scientific in theory. The concept of crime in law is not only strictly scientific in legislation and judicature, but also strictly scientific in theory. This is mainly reflected in the universal application to minors and mental criminals. In the past, when teachers and propagandists explained and publicized legal knowledge in university classes and publicity, they generally mechanically said that minors and mental patients under the age of 14 did not commit crimes under the condition of mental illness, unconsciousness and uncontrollable ability. This kind of understanding is inappropriate and unscientific, which leads to the contradiction of theoretical explanation. First of all, it's not that people under 14 years old have committed acts that endanger society and violate criminal law, but that people over 14 years old in the same year have differences in criminal responsibility investigation.
/kloc-people over the age of 0/4 should be investigated for criminal responsibility according to the criminal law, while minors under the age of 0/4 should be investigated for criminal responsibility. Although they are not investigated for criminal responsibility according to the criminal law, their guardians should be investigated for responsibility, which shows that people of this age have shifted their responsibilities for the above acts, indicating that these acts are crimes. Otherwise, the responsibility should not be transferred to the responsibility of the guardian.
It can be seen that the legal concept of crime does not deny that minors under the age of 14 commit criminal acts that endanger society and violate the criminal law. Moreover, in theory, there is a clear division of "complete criminal responsibility period, relative criminal responsibility period and no criminal responsibility period" for juvenile delinquency, which makes people who have reached the age of 16 and those who have not reached the age of 18 bear criminal responsibility no matter what kind of crimes they commit; Those who have reached the age of 14 but under the age of 16 are criminally responsible for several crimes, while others are not. /kloc-people under the age of 0/4 do not bear any criminal responsibility.
This theoretical division is scientific and helps people to understand the concept of crime correctly. Secondly, regarding the behavior of mental patients endangering the society and violating the criminal law, the legal circle believes that as long as the perpetrator is delirious and unable to control his own behavior due to illness, it is not considered a crime and he will not be investigated for criminal responsibility. But academically, compared with negligent crime, this kind of behavior lacks intention, and the facts and harmful consequences of the behavior are basically the same, so it is unreasonable not to consider it a crime. However, in the teaching and popularization of law, people often only emphasize criminal responsibility as a necessary condition to constitute a crime. Therefore, it is hardly considered a crime to commit acts that endanger society and violate the criminal law against people under the age of 14 and mental patients who are out of control. This one-sided understanding misleads minors under 14 years old, making some people think that as long as they are under 14 years old, they can do whatever they want. For example, when a public security organ cracked a theft case, it caught a child of 12 years old. When interrogating him, he told the public security personnel: "Uncle, I told them everything. I'm not 14 years old. It's okay. Can I go? " This interesting phenomenon cannot but make us reflect.
In law teaching and legal publicity, how to put an end to one-sided interpretation and emphasize the views that should not be emphasized. However, there are differences between negligent criminals and mentally ill criminals in the state of no criminal intent, which is obviously unfair.
Third, the legal discussion on the constitution of crime and the ability of responsibility lacks rigor and scientificity. The constitutive elements of crime in jurisprudence are "subject, subjective aspect, object and objective aspect of crime". The subject of crime refers to the person who has committed the crime; The subjective aspect of crime refers to the subjective motivation and intention of the criminal; The object of crime means that the criminal's behavior violates the social relations protected by criminal law; The objective aspect of crime means that the perpetrator has committed a criminal act, and the criminal act has caused harmful results. Among them, the subjective aspect of crime emphasizes criminal motive and intention, which is undoubtedly correct for intentional crime, but it is weak and far-fetched for negligent crime, because negligent crime lacks criminal motive and intention. Obviously, this element in the constitution of crime is not strict and flawed in theory, and it cannot be justified by using it to explain negligent crime. Therefore, it is necessary to improve this requirement, highlight the negligence and consciousness characteristics that should be foreseen but not foreseen, and incorporate them into the subjective elements of the crime constitution.
The relationship between the theory of the subject's responsibility for publishing legal papers and criminal sanctions is clear, but there are different opinions in academic circles, especially in the fields of criminal law and criminology. In the field of criminal law, it is generally believed that the ability of responsibility is a necessary condition to constitute a crime, and a conviction can only be made if there is the ability of responsibility, but not if there is no ability of responsibility; However, in the field of criminology, it is considered that the ability of responsibility should not be a necessary condition to constitute a crime, and as long as the actor commits an act that endangers society and violates the criminal law, it should constitute a crime. As for the ability of responsibility, it is only the measure and basis for the judicial organs not to impose criminal sanctions. According to this view of criminology, the legal concept of crime and the theory of crime constitution are completely applicable to minors and mental patients under the age of 14, who commit acts that endanger society and violate the criminal law when they suffer from mental illness and lose their self-control ability.
They may not be investigated for criminal responsibility, but other measures need to be taken, such as less education and isolation. In fact, these measures are often used in judicial practice. However, criminal law scholars exclude these sanctions from liability. Of course, it is not a criminal responsibility, but it is still a responsibility, which should be clear in theory, otherwise it is inconsistent with jurisprudence and facts. Therefore, the proposition of criminology is scientific and reasonable The proposition of criminology is not only conducive to the prevention of juvenile offenders and mental offenders in practice, but also conducive to the handling of their criminal acts in theory, and also conforms to the provisions of the Law on the Prevention of Juvenile Delinquency in China.