論犯罪構(gòu)成之非結(jié)構(gòu)性基礎(chǔ).pdf

1、 Abstract The vitality of the theory of constitutive elements of crime lies in the manifestation and mediation of the impunity mechanism of criminal law, and avoiding the malpractice of tyranny in conviction and sentenci

2、ng and realizing the basic principle of Convection and penalty according to law, so that the function of the criminal law in protecting the society and that of safeguarding human rights can reach a state of balance. The

3、structure of constitutive elements of crime includes legal structure and theoretical structure. There is a universal similarity in the legal structure of constitutive elements of crime in countries all over the world, bu

4、t there exist great differences in the theoretical structure of the constitutive elements of crime. For a long time, it is commonly believed in the field of legal crime in China that the mechanism of impunity depends on

5、the structural form of constitutive elements of crime .The “three class structure” of constitutive elements of crime of the continental law system and that of the “anti-type defense model” of the Anglo-American law syste

6、m are highly valued, however, the plane, coupling structure of the four essential elements in constituting crime of our country has been seriously castigated. Adopting the methods of historical analysis and comparative s

7、tudy, this article tries to search for the internal rule of impunity mechanism in constructing the constitutive elements of crime. In the process of transformation from perusing the formula of the principle of criminal l

8、aw to the perusing virtual principle of criminal law, the theory of constitutive elements of crime of the continental law system enriched and improved the law-breaking blocking causes and responsibility exclusion cause，a

9、nd placed them in the stages of law-breaking and responsibility sharing respectively, and eventually develop into the structure form of three-stage forwarding of action deserving，law-breaking and responsibility sharing,

10、and thus made the impunity mechanism of constitutive elements of crime quite unimpeded. Based on the tradition of common law, the Anglo-American law system adopts the confronting defense program, cites various of defense

11、 circumstances，so as to make legal defense circumstances，forgivable circumstances and procedural circumstances become the tool of safeguarding human rights and thus opened up the impunity mechanism of criminal law. In a

12、 word, the historical experience of the theory of constitutive elements of crime of the two genealogies of law tell us that, the structural base of right and wrong determined the structural form of constitutive elements