I don't study law, but I think what Mr. Luo Xiang said is very interesting and thought-provoking, so Mark focused on it, which may suddenly come in handy at some time in many years.
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Including behavior subject, harmful behavior, behavior object, harmful result, behavior state, objective relationship between behavior and result.
Two subjects: natural person and unit.
1, natural person
Pay attention to the status crime, take its essence, don't look at the surface, look at the inner essence.
Doctors accept red envelopes for surgery, and the law does not crack down because it is very common in social life. There are two main situations in which doctors receive red envelopes. One is to prescribe high-priced drugs and receive kickbacks from medical representatives. If you are a doctor in a public hospital, because prescribing is a technical right, you can only be considered as a non-state employee accepting bribes. One is to buy drugs and collect kickbacks from drug dealers. Because the ownership of procurement belongs to public power, it is recognized as bribery.
2. Unit
Unit crime is a very special provision in China's criminal law.
First, the main body of unit crime is companies, enterprises, institutions and government organizations.
Second, it must be implemented in the name of the unit. Objectively, it should be reflected in the decision-making of the unit, the decision of the organization and the implementation of the direct personnel. It must be embodied in the will of the unit rather than the will of the individual.
Third, crime must pursue the interests of the unit, not the personal interests.
Fourth, unit crimes may be intentional crimes, but there are also negligent crimes.
Fifth, the legalism of unit crime, the unit only bears criminal responsibility for crimes that can be constituted by criminal law. The teacher concluded that there is no unit crime in all violent crimes (except the crime of refusing to execute the judgment or ruling), no unit crime in traditional natural crimes (except the crime of concealing and concealing the crime of offending and forced labor), and no unit crime in monetary crimes (except the crime of smuggling counterfeit money).
Compared with the unit crime, the punishment of natural person crime will be heavier. This determines that legal hermeneutics should strictly explain unit crime. Please note the following points:
1) unit personality denial system, if the unit is established to commit a crime or the main business of the unit is a crime, it will no longer be understood as a unit crime, but an individual crime.
2) A crime committed by a sole proprietorship enterprise or partnership enterprise without legal personality is no longer understood as a unit crime, but an individual crime. Individual industrial and commercial households commit crimes.
There is a subtle zone: because our country does not use the concept of corporate crime, but uses the concept of unit crime, so there is a phenomenon. Organizational crime within a unit has no legal person status, but it belongs to a unit crime.
3) The nature of unit ownership does not affect unit crime.
4) If a one-person company has the legal person qualification, it can also set up a unit to commit crimes.
Classification of unit crime
1) pure unit crime
It can only be composed of units. Unit bribery crime and unit bribery crime.
2) Impure unit crime
It can be composed of both units and natural persons. Crime of smuggling ordinary goods and articles.
The filing standards of individuals and units are different.
There are two subjects to be punished for unit crimes, namely, units and natural persons. Generally, the double penalty system is adopted to punish both the unit and the natural person, but the fine can only be applied to the unit. Under extremely special circumstances, the single penalty system can be adopted, but the single penalty system only punishes natural persons and does not punish units.
If the unit has disappeared and it is impossible to pursue the unit, a natural person can be pursued.
Any crime must have behavior, and no behavior is not a crime.
Harmful behavior: value judgment is an act that infringes on legal interests. Ordinary behavior in daily life is not harmful.
Classification of dangerous behaviors: actions and omissions.
Generally speaking, the distinction between action and omission mainly depends on the essence, whether the norms it violates are imperative norms or prohibitive norms. If you violate the prohibition and do something inappropriate, that's behavior. If you violate the command norms and don't do it, it is inaction.
Sometimes it may be a combination of action and inaction. There are two patterns of tax evasion. One is that refusing to perform the declaration obligation belongs to omission, and the other is that evading tax payment by deception belongs to act.
What is more common is the concurrence of action and omission, that is, one crime may be action and another crime may be omission, but they are all the same behavior, and one behavior has violated several charges. A rare tree was cut down, and the tree fell down, hurting the hunter, but it was not saved.
1，as
Step 2 be inactive
1) pure inaction
If the provisions stipulated in the specific provisions of the criminal law are mandatory norms themselves and stipulate the crime of omission, I will implement it by omission. The crime of refusing to execute a judgment, the crime of temporarily evading military service, and the crime of abandonment.
Pure crime of omission, ta's obligation to act only comes from legal provisions.
2) Impure inaction
If the provisions stipulated in the specific provisions of the criminal law are prohibitive norms and are stipulated as crimes, I have implemented them through inaction. The crime of intentional homicide was stipulated, but the mother did not breastfeed the child, which led to the child's death.
There will be a legal review of the crime. In order to think that ta constitutes a crime, it must be equivalent and equal in nature, and three conditions must be met:
The first is the obligation to act. There are four kinds of formal sources, namely, obligations clearly stipulated by laws and regulations, obligations stipulated by duties or businesses, obligations arising from legal acts and obligations arising from previous acts. //When you understand the source of each form, you should pay attention to its internal substantive basis, which is the so-called master control. You have formed the master control over this legal interest. Master domination includes protective domination and monitoring domination. Protective domination, when the law is conducive to helplessness, then you have the obligation to protect. Supervise and dominate, if this danger is caused by yourself, then you have the obligation to supervise and eliminate it. //The obligations stipulated by laws and regulations can be the laws of other departments, but they must be recognized by the criminal law. Eg. The Criminal Procedure Law stipulates that there is an obligation to testify, but not testifying does not constitute a crime, because it is only an obligation stipulated in the Criminal Procedure Law, and the criminal law has not raised this obligation to a criminal law obligation. There are three exceptions, namely the crime of refusing to provide evidence of espionage, the crime of refusing to provide evidence of extremism and the crime of refusing to provide evidence of terrorism. It is necessary to distinguish between guardianship obligations (such as children) and maintenance obligations (such as spouses). //obligations stipulated by the position or business. The police have an obligation to stop crime, but when they wear casual clothes on holidays, they have no obligation to stop crime. Only when medical personnel form a medical relationship with patients can they have the legal obligation to treat patients. //There are two kinds of obligations arising from legal acts, namely, obligations arising from contractual acts and obligations of voluntary acceptance. As long as the contract allowed in the specification is a contract. Voluntary acceptance is a good thing. Either don't do it or do it to the end. //The obligation arising from the previous behavior is that if the behavior of the actor makes the law favorable to the dangerous state, then the actor has a specific obligation to eliminate the danger or prevent the occurrence of harmful consequences. Note that it is the behavior of the actor, not the behavior of the victim, that causes the danger. If the risk is reduced without increasing the risk, of course there is no obligation. //There is no dispute about emergency avoidance in legal acts, and obligations will arise. For self-defense, the key depends on whether the death result exceeds defense, and exceeding it is an obligation.
The second is the ability to act. We should have the ability to act, and our ability should be judged according to general standards.
Third, there must be harmful results, and there is a causal relationship between harmful results and obligations.
Behavior crime: the harmful behavior stipulated in the specific provisions of criminal law.
Non-execution behavior: modification of various constituent elements, such as preparation/instigation/assistance behavior.
A person or thing played by an actor.
Some crimes have an object of action, while others have no object of action, such as perjury and escape.
Object and legal interest are two concepts. Infringement of the same object may have different legal interests; Infringement of different objects may have the same legal interests.
Actual damage or real danger caused by criminal law to the protected interests.
Complexity is mainly a classification problem.
1) The classification of behavioral crime and consequential crime. If it is considered that the constituent elements include the result elements, it is a consequential offence; If it is not included, it is a crime of behavior, such as perjury.
2) Classification of actual crime and dangerous crime. The crime of actual harm belongs to a kind of consequential crime, and there must be actual damage, such as intentional homicide. There are two kinds of dangerous crimes, namely abstract dangerous crimes and concrete dangerous crimes. Generally speaking, behavioral crime is abstract dangerous crime, and consequential crime is concrete dangerous crime. The most important difference between the two kinds of dangerous crimes is whether the judicial organ of this dangerous crime needs to prove it with evidence. If it is a danger identified by the judicial organs, it is a danger that the judicial organs must prove with evidence, which is a specific danger. If it is a danger that judicial organs do not need to identify, if there is an act, it can be presumed to be a danger of legal interests, that is, an abstract act has been implemented.
Tidy up:
Behavior crime is what we call abstract dangerous crime.
Consequential crime includes actual crime and specific dangerous crime.
The time, place and method of implementing the act specified in the constitutive requirements.
For most crimes, time, place and method are not essential elements, and may be used as conditions for upgrading criminal law or sentencing.
Several charges are essential elements of the crime of illegal hunting, such as the hunting season, hunting area and hunting tools.
It is both complicated (there are many theories of causality) and simple (the judgment of causality is mainly an empirical common sense judgment).
Two main theories: conditional theory and equivalence theory.
1, conditional theory
Without the former, there is no latter, and the former is the condition and reason of the latter.
Conditional theory can easily lead to the infinite expansion of the scope of punishment. Conditional theory only screens factual cause and effect, and as legal cause and effect, it needs to be further screened on this basis.
2, quite said
On the basis of conditional theory, a fairly standardized screening is carried out. Only according to the rule of experience, the behavior is inevitable or probabilistic, that is, the result will happen with high probability, can it be considered as legal causality. ?
Two basic judgment premises of considerable causality;
1) the objective relationship between the harmful behavior and the result. Harmful behavior must be a type that infringes on legal interests, excluding behaviors allowed by social life. ?
2) Danger transfer theory: If the danger belongs to the responsibility of professionals, there is no need to consider causality. Because the duties of some special professionals (such as police and firefighters) are inherently dangerous, it is dangerous for them to assume their duties. //Implementation behavior does not include preparatory behavior. If it is the result of preparatory behavior, obviously it cannot be considered as a causal relationship.
Several special causal relationships
1) overlapping causality
The most typical 5+5 case. Zhang San put in 5 grams of poison. I knew that 5 grams of poison would not kill people, so I added 5 grams of poison. The lethal dose of poison was exactly 10 gram. There is a causal relationship between two people and death because 5+5= 10. Without the action of two people, this person would not have died.
2) Causality of concurrence
If the lethal dose of poison is 5 grams, Zhang San put 5 grams of poison, and I put 5 grams of poison without Zhang San's knowledge. If I hadn't poisoned him, that man would have died because of the poison thrown by Zhang San. If Zhang San hadn't poisoned him, that man would have died because I poisoned him. Similarly, two people have a causal relationship with death. Without the action of two people, this person will not die.
3) Substitute causality
When Zhang San traveled to the desert, I put 10g poison in the cup. As a result, Li Si dug a hole in the cup, and Zhang San died of thirst. Because thirst, poisoning and death have no causal relationship, only the digger and death have causal relationship.
4) Hypothetical causality
Causality cannot be assumed, because causality is an objective judgment.
Judgement steps of considerable causality:
1) According to the conditions, it is concluded that there is a factual causal relationship.
2) On the basis of conditional theory, judge equivalence.
Causality is actually complicated by intervening factors, and there is no connection between pre-behavior and result. The existence of intervention factors makes the pre-behavior related to the result.
In reality, it is much more complicated, and there is generally only one intervening factor in the examination questions. When there is only one intervening factor, the simplest numerical formula depends on whether it is A+B-C or B-C. If it is A+B-C, A is the pre-behavior, B is the intervening factor, and A+B-C is the post-result, then A and B are related. If it is B-C, leaving A, B alone leads to C, then A and B have nothing to do.
What is A+B-C means that the intervention factors are subordinate to the pre-behavior, and there are at least two situations: one is that the pre-behavior leads to the intervention factors with high probability, and the intervention factors lead to the results. The most typical problem is the struggle for the steering wheel. The second situation is that pre-behavior and intervention factors lead to the occurrence of results, and the two go hand in hand.
Common intervention factors
1) the factors involved in the victim. The victim's special physique. There is a causal relationship, but it does not necessarily bear criminal responsibility. There is no causal relationship, nor does it mean that it does not bear criminal responsibility.
Special circumstances: suicide. Eg. Suicide after domestic violence, judicial practice generally believes that there is a causal relationship between suicide in the process of abuse, which belongs to the aggravated crime of abuse and is called abuse causing death. //The father interfered with his daughter's love many times, which led her daughter and her boyfriend to commit suicide together. There is only causal relationship between father and daughter's suicide. //Crime of deceiving others and causing death by using cult organizations. Judicial interpretation specifically stipulates that the use of cult organizations to coerce others to commit suicide directly constitutes an indirect principal offender of intentional homicide.
2) Factors of third-party participation. Dog/third person. See whether it is a+B-C or B-C. Note that as an intervening factor, omission cannot cut off the causal relationship.
3) Add actors. Deliberately advance