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Super Illegal Ground for Elimination System Construction

Author: ChenQingAn
Tutor: MaSongJian
School: Zhengzhou University
Course: Criminal Law
Keywords: Illegality Ultra Illegal Ground for Elimination System Construction
CLC: D914
Type: Master's thesis
Year: 2004
Downloads: 311
Quote: 6
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Abstract


In all legal sanctions, the penalty is the most severe sanction. The involvement of the penalty will directly lead to the offender's property, freedom, or even deprivation of life. The penalty used properly, will play the function of protecting the people, the fight against crime; penalty if used improperly, it will seriously infringe on the human rights of their citizens, resulting in a waste of judicial resources, affect the prestige of the law, is not conducive to the cultivation of the people of the concept of the rule of law. Therefore, regardless of the theory of crime constitution of our country and the former Eastern European countries coupled four elements, Germany and Japan represent progressive elements of the crime constitution theory, or the common law system in the mode of the double crime constitutes, The provisions on the establishment of the crime strict conditions, a reasonable definition of the scope of the crime, the effective use restrictions penalty. Germany and Japan on behalf of the civil law theory of crime, the behavior to have constituent elements deserve sex, illegal sex, there are three elements of accountability, crime only been established, which is centered through the status of illegality, with the constituent elements deserved behavior, it is necessary to further evaluation as unlawful before discussed accountability is necessary, otherwise, the evaluation of the criminal law will come to an end. Evaluation of the law need to form both illegal and substance illegal form of illegal sex refers to the violation of order or law norms; understanding of the substance illegal varies from person to person, according to the theory of the social only acts beyond \Social harm of the substance illegal and China's criminal law theory is quite similar to the core of all an act of harm to society, to undermine the existing criminal law order. Super Illegal Ground for Elimination is the inevitable result of the real illegality behavior have constituent elements deserve and forms of illegality, not necessarily have substantial illegal, the substance illegal acts in order to avoid punishment, the mainland the legal systems of the countries Penal Code expressly provides that illegal Reason to Hinder the range to restrict the establishment of the crime. However, the development of the times and to this day, has not many people stop believing perfect positive law, both legislators how visionary, how profound knowledge, and are difficult to avoid the law and social disconnect, and are unable to avoid the emergence of legal loopholes. In addition, the social novelty endless changes in social attitudes are not home, the legal impact of these factors will lead to legal lag, therefore, outside the positive law, admit Reason to Hinder super law and regulations, in order to compensate for the lack of positive law on the potential in the pipeline. Legality standpoint favor the defendant's ultra Illegal Ground for Elimination of theory, and also acknowledged the possibility of criminal law theory. Final legal effect of super Illegal Ground for Elimination behavior is not set up crime and therefore negates the use of the penalty Reason to Hinder ultra regulations illegal there, and it negates the constituent elements deserve reasons, it negates the responsibility reasons, objective punishment condition, negates penalty reasons, as well as The penalty of illegality differentiated necessary, this distinction will deepen understanding Reason to Hinder illegal ultra regulations. Reason to Hinder the law's provisions because of the criminal law of all countries of the same, therefore, justify behavior that should be Reason to Hinder the regulations on illegal, those should be super Illegal Ground for Elimination is difficult to obtain the unanimous conclusion. Check national criminal law theory in the super regulations illegal Reason to Hinder Total: behavior was committed by the victim constructive commitment from the loss behavior, self-help behavior therapy behavior, obligations conflict behavior, while social activity behavior, can allow danger of euthanasia The behavior of the labor dispute, the school's right to discipline students, super regulations, emergency shelter and other 12 kinds. China's legal system is one of the above reasons, and concluded that the behavior was committed by the victim, and may be subject to allow the dangerous behavior in accordance with the decree, the proper behavior in business, euthanasia, ultra regulations, emergency shelter, self-help behavior and obligations conflict eight legitimate ground shall become super Illegal Ground for Elimination in China's criminal law theory. Reason to Hinder is illegal on the super Illegal Ground for Elimination and regulations should have a common generic concept, this generic concept monism social considerable sexual said. On this basis, a legitimate ground system learn Japanese scholars group Teng Shigemitsu, Reason to Hinder ultra regulations illegal in China's criminal law theory can be divided into two broad categories. The first class is super the regulatory norm illegal Reason to Hinder, are: was the acts committed by the victim may be subject to the danger of the allowable behavior in accordance with the decree, the proper conduct of business, euthanasia, five; ultra regulations emergency type of behavior are: the super regulations emergency shelter, self-help, and three conflicting obligations. The first class of common elements: the legitimacy of the purpose, means quite sexual and legal interests balanced, while the second in a necessary feature of the elements of the first class, still need to have, supplementing.

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