[Abstract] This paper first discusses the general theory of criminal motive, including the concept and nature of criminal motive, the connection and difference between criminal motive and criminal purpose, the classification of criminal motive and the scope of criminal motive. Secondly, by introducing foreign legislative provisions and judicial practice on criminal motives, it is considered that some foreign practices can be adopted by our criminal legislation. Finally, the author thinks about the legislation of criminal motives, analyzes the necessity and feasibility of legislation, and puts forward legislative suggestions suitable for China's national conditions and criminal justice characteristics.
[Keywords:] criminal motive, criminal motive, legislation, sentencing circumstances, intentional homicide
First, the general theory of criminal motivation
(1) The concept and nature of criminal motive
What is motivation? Engels once pointed out, "Personally, all the motives of his behavior must go through his mind, and must be transformed into his desires and motives, so that he can act ..." [1] Psychologically speaking, human behavior is dominated by motives, which are caused by needs. Without need, it is impossible to generate power. However, not all needs can be the driving force. Only when you need to point to a certain goal and show the possibility of achieving it can you form motivation and drive your behavior. In other words, there are production needs and incentives. It can be seen that there are two conditions for the formation of motivation: one is internal conditions, namely needs and desires; The second is external conditions, that is, incentives and stimuli. Therefore, the concept of motivation can be summarized as follows: motivation refers to the internal force that promotes human action, and it is the desire and idea that causes and maintains individual behavior and guides this behavior to a certain goal.
According to the definition of criminal law textbooks in China, the so-called criminal motivation refers to "the internal reasons or ideological activities that stimulate and urge criminals to commit criminal acts, and answer the psychological reasons for criminals to commit criminal acts, so the role of motivation is to launch criminal acts; Explain the significance of committing a criminal act to the psychological will of the perpetrator. " [2]
The essence of criminal motive refers to the particularity of criminal motive determined by internal needs. Generally speaking, criminal motives are antisocial in nature. Regardless of the social nature of criminal motives, the behaviors they promote are socially harmful. Therefore, linking the criminal motive with the criminal behavior it leads to will show that the criminal motive is antisocial. As the criminologist Tararusin pointed out: "The motives that induce crime are mostly antisocial or undisclosed." [3]
(2) Criminal motive and criminal purpose
The so-called criminal purpose refers to the criminal's psychological attitude that he hopes to achieve some harmful social results by committing criminal acts, that is, the subjective expression of harmful results on the criminal. Criminals who commit theft have the purpose of illegally possessing public or private property; Intentional homicide has the purpose of illegally depriving others of their lives.
1. The connection between criminal motive and criminal purpose
There is a close relationship between criminal motive and criminal purpose, which is mainly manifested in the following aspects: (1) Both are subjective psychological activities in the process of criminal behavior, and their formation and function reflect the subjective viciousness of the actor and the social harmfulness of the behavior. (2) The criminal purpose is based on the criminal motive, which comes from the criminal motive, and the criminal motive promotes the formation of the criminal purpose. (3) Sometimes the two are directly related, that is, they reflect the same needs, such as committing crimes against property for the purpose of greed and illegal possession.
2. The difference between criminal motive and criminal purpose
The criminal motive and criminal purpose are different from each other, mainly in the following aspects: (1) The time sequence of their formation is different. That is, criminal motive comes first, criminal purpose comes later, and criminal motive is the reason of criminal purpose. Motivation comes from people's need for a certain aspect, and motivation is that people realize a certain need. The criminal motive is caused by bad psychological factors to stimulate people's needs; The purpose of crime is formed on the basis of a clear understanding of the nature of criminal behavior. When committing a crime, the purpose of the crime controls the direction of the criminal behavior and transforms the criminal consciousness into the criminal behavior; (2) Their contents and functions are different. Criminal motive is the internal reason that shows why the perpetrator commits a crime, which is abstract and the internal motive to launch a crime, and plays a role in promoting the implementation of the crime; The purpose of crime is the subjective reflection of the objective harmful result pursued by criminal behavior, which is more specific. It determines the direction of criminal behavior and guides criminal behavior to the expected goal. Therefore, motivation determines the generation of purpose and the implementation of purpose-dominated behavior; If there is a purpose, there must be a motive, and the motive does not necessarily have a purpose; Both of them develop and change with the development of behavior, but motivation plays a role in promoting behavior and purpose plays a role in guiding and guiding; (3) One criminal motive can lead to several or different criminal purposes. For example, the motive of revenge can lead the perpetrator to pursue different criminal purposes such as harming others' health, depriving others of their lives or destroying others' property; A criminal purpose can also be promoted by multiple criminal motives at the same time. For example, the pursuit of intentional killing and depriving others of their lives can be based on the combination of hatred and economic interests; (4) They have different meanings to conviction and sentencing. In practice, the purpose of a crime generally affects not only sentencing, but also conviction, focusing on conviction, while the motive of a crime focuses on sentencing.
3. Transformation of criminal motive and criminal purpose
The criminal's motive is not always single from the beginning, and there are often several criminal motives. After a fierce struggle for criminal motives, strong criminal motives prevailed. At this time, based on this criminal motive, a specific criminal purpose began to appear. As a criminal motive, a certain desire and need of the actor, such as venting anger and revenge, will be transformed into a criminal purpose once it is combined with specific criminal acts, such as killing, injuring, destroying public and private property, and the realization of the criminal result is the way to meet the desire or need of the actor. In other words, when the actor meets the requirements of criminal motivation in a specific way, a specific criminal purpose is formed.
Generally speaking, the criminal motive may have the following different results: (1) To commit a crime according to the established criminal motive and successfully achieve the criminal purpose. (2) Criminal Motivation In the process of committing a crime, the crime is terminated due to the subjective factors of criminals or some objective situation. (3) Criminal Motivation In the process of committing crimes, due to the rapid changes of subjective and objective factors, criminals suddenly have new criminal motives, which constitutes a more serious crime.
(3) Classification of criminal motives
According to the nature of criminal motives, western criminologists divide criminal motives into three categories: the desire for money, the desire for sex and the desire for aggression. Chinese criminal law scholars hold that criminal motives can be divided into the following 1 1 categories: (1) political motives, pointing out criminal motives arising from anti-social needs; (2) Property motive refers to the criminal motive to meet the material needs such as food, clothing, housing and transportation; (3) Sexual motivation refers to the criminal motivation to meet the needs of sexual instinct; (4) Revenge motive refers to the criminal motive based on revenge; (5) Self-esteem motivation refers to the criminal motivation to meet the needs of some abnormal self-esteem; (6) Friendship motive refers to the criminal motive caused by meeting the needs of some non-social friendship; (7) Jealousy motive refers to the criminal motive caused by jealousy; (8) Joking motive refers to the criminal motive arising from the pursuit of excitement; (9) Fear motive refers to the criminal motive caused by fear; (10) Curious motivation refers to the criminal motivation caused by curiosity; (1 1) Other motives, such as the sense of justice in the act of putting righteousness above family members. The nature of criminal motives is different, and the subjective malignancy reflected is often quite different. For example, the greedy motive of killing people for money is greater than the subjective malignancy of violating others out of self-esteem. [4]
(d) the scope of the criminal motive.
Academic circles have different views on the scope of criminal motives. Generally speaking, criminal motive only exists in direct intentional crime. A few scholars believe that criminal motive exists not only in direct intentional crime, but also in indirect intentional crime and even in negligent crime. The author agrees with the general view that criminal motive only exists in direct intentional crime. According to motivation theory, it is not the result of behavior that determines motivation, but motivation that determines the result of behavior. More importantly, the criminal motive is a psychological index to measure the criminal's subjective malignancy, and only the psychological facts that can explain the criminal's subjective malignancy can become the criminal motive. For example, adultery murder and indignation murder are different in the subjective malignancy of criminals. In indirect intentional crime and negligent crime, the so-called motive does not reflect the subjective malignancy of the perpetrator. For example, there is no difference between indirect intentional homicide of poisoning his wife and indirect intentional homicide of hitting prey. Therefore, the author believes that there is no criminal motive for indirect intentional crime and negligent crime.
Second, the provisions on criminal motives in Chinese and foreign legislation and judicial practice.
(a) Practices in foreign legislation and judicial practice on criminal motives
In civil law countries dominated by written laws, many countries attach great importance to criminal motives in legislation or judicial practice. For example, Germany explicitly wrote the motive into the criminal code. Criminal motive is not only the primary basis of sentencing in German criminal law, but also an important constituent element of some crimes. Article 46 of the German Criminal Code stipulates the basic principle of sentencing: "When sentencing, the court should weigh the favorable and unfavorable circumstances of the offender, paying special attention to the following matters: the criminal's motive and purpose, the thoughts and intentions revealed by his actions, etc." . [5] At the same time, article 188 directly stipulates the motive related to the public life status of the defamed person in the provisions of the crime of libel and slander of political figures, which has become one of the constitutive elements of the crime. Japan's criminal legislation also has provisions in this regard. Item 2 of Article 48 of Japan's Draft Amendment to Criminal Law stipulates: "When applying punishment, we should consider the age, personality, experience and environment of the offender, the motive, method, result and social influence of the crime, and the attitude of the offender after committing the crime, so as to help curb the crime and promote the improvement and reform of the offender." [6] Article 23 of the Spanish Criminal Law stipulates: "If the criminal's spouse and stable relatives, respected relatives, close relatives, legitimate children, stepbrothers or relatives of the same age help the criminal to commit a crime, their criminal responsibility may be reduced or aggravated according to the nature, motivation and result of the crime." [7]
Intentional murder has various criminal motives, such as revenge murder, adultery murder, indignation murder, and murder for money. Article 2 13 of German Criminal Law stipulates: "It is not the responsibility of the perpetrator, but because the victim insulted or insulted his person or family members, which led to the perpetrator's murder with indignation on the spot, or other mitigating circumstances, which belong to the mitigating circumstances of intentional homicide." [8] Item 4 of Article 143 of the Spanish Criminal Code stipulates: "Whoever kills or participates in the killing of the victim through necessary and direct actions because the victim has made a serious and definite death request or suffers from a persistent, serious and unbearable serious disease shall be given a mitigated punishment of one to two levels." [9] It can be seen that criminal motives have been paid attention to in criminal legislation and justice in many countries.
In common law countries, criminal motive is a very important factor in criminal justice. Common law countries implement the jury system, and the power to decide guilt or innocence lies in the hands of the jury. The members of the jury are not legal experts, but ordinary people representing social conscience. They often judge whether a person is guilty not only by what he did, but also by why he did it. In their eyes, not all murderers are criminals or even heroes. This is often largely due to different motives.
(2) China's legislative attitude towards criminal motives and practices in judicial practice.
In China's criminal legislation, criminal motive is not a constitutive element of crime, but a discretionary sentencing circumstance. Discretionary sentencing circumstances refer to the fact that there is no explicit provision in criminal law, which is summarized and applied by judicial organs in judicial practice and has an impact on correct sentencing. The different criminal motives directly indicate the different guilt of the perpetrator, so it is an important factor that must be considered when sentencing. For example, the same intentional homicide, some out of indignation, some out of revenge, reflects the subjective malignancy of tourism, and there should be differences in sentencing.
At the same time, the criminal motive also has certain influence on conviction. For example, article 13 of China's criminal law stipulates: "If the circumstances are obviously minor and harmless, it is not considered a crime." Another example is Article 37 of the Criminal Law: "If the circumstances of the crime are minor and there is no need to be sentenced to punishment, criminal punishment may be exempted." In some specific provisions of China's criminal law, it is stipulated that "serious circumstances" or "bad circumstances" are the constitutive elements of a crime, and we call this kind of crime "plot crime". For example, article 243 of China's criminal law stipulates that the crime of false accusation and frame-up is only established if the circumstances are serious; Article 246 of the Criminal Law stipulates that the crime of insult or slander is only established if the circumstances are serious; Wait a minute. Similar provisions occupy a considerable proportion in China's criminal law. As far as the current criminal law and its amendments are concerned, there are 74 articles with serious and bad circumstances as the constitutive elements of crimes and 79 charges. What we usually call the "plot" of the plot crime mainly includes the criminal motive, the subjective malignancy of the actor and other factors related to the personality judgment of the actor. According to legislation and judicial practice, criminal motive is one of the important contents of conviction circumstances.
The criminal code of our country has relatively simple provisions on the crime of intentional homicide, involving only one charge. The subjective aspect of the crime requires intention, that is, knowing that one's actions will lead to the harmful result of others' death, and hoping or letting this result happen. Different motives for killing have no influence on the constitution of this crime. There is such an example. My son is ignorant, gambling like a life, burning, killing and looting, and doing all kinds of evil. He often beats and scolds his elderly parents and often asks for their "coffin book". The villagers are afraid to see him, which can be said to be a local disaster. The old father was heartbroken and killed his son based on the motive of "putting righteousness above family", which was considered to be harmful to others and himself. It is true that his behavior has constituted the crime of intentional homicide, because our country does not recognize the "family law" and the law does not allow anyone to illegally deprive others of their lives for any reason. However, in a sense, the behavior result caused by its motivation may avoid or reduce the potential harm of the victim to society, while the criminal himself is not very harmful to society. Of course, it is not the author's intention to let this crime happen.
Third, legislative thinking on criminal motives.
(A) the necessity of criminal motive legislation
The legislation of criminal motive means that the criminal motive of some intentional crimes is clearly stipulated in criminal law legislation. It is necessary to legislate on criminal motives: (1) The status of criminal motives in China's current criminal law is unreasonable and even shows great limitations. To sum up, this limitation is manifested in the following two aspects: ① It is not conducive to scientifically grasping the nature of crime to discuss crime without asking the motive. Crime is a sin prohibited by law. In a sense, punishment is also an evil, a necessary evil permitted by law. Then the difference between the evil allowed by law and the evil not allowed by law in the constitutive requirements of the act itself lies in the reason behind the act, that is, the motive. There is no distinction between good and evil in the act of extracting motivation, so we can't ignore the act defined as a crime, otherwise it will be difficult to understand what a real crime is; (2) It is not conducive to the full play of the functions of criminal law to discuss crimes without asking about motives. Traditional criminal law theory holds that the function of criminal law lies in maintaining social order and safeguarding civil liberties. In addition, the author believes that criminal law should also have the function of moral punishment. The function of criminal law as a moral precept is realized by pursuing the value concept of criminal law-justice. Only in this way can criminal law become a good law that people support and convince. It is obviously impossible to do this without considering the position and role of criminal motive in criminal law. (2) The legislation of criminal motive is conducive to the refinement of certain crimes, which is also the basic requirement of human rights protection. For example, the legislation of intentional homicide in China's criminal law stipulates that the charges are too general and the statutory punishment is too large. Legislation stipulates the legal punishment range from death penalty to fixed-term imprisonment of less than three years, but it does not stipulate the corresponding specific circumstances. The vicious serial killing of several people is intentional killing, the impulsive passion killing is intentional killing, and loyalty is intentional killing. However, for different situations caused by different criminal motives, there is no corresponding provision in the legislation, and the legislation seems a bit rough; (3) Criminal motive is of great significance for understanding and grasping the emergence and development of the whole phenomenon of direct intentional crime. For criminal behavior, only by exploring its motivation can we correctly reveal the essential factors of criminal behavior, which is helpful to prevent and reduce the occurrence of crime and crack down on criminal behavior.
(B) the feasibility of criminal motive legislation
Legislation of criminal motive is feasible, which is mainly manifested in the following aspects: (1) China's judicial organs often consider criminal motive when sentencing direct intentional crimes, and legislation does not conflict with the practice in China's judicial practice, but only justifies it; (2) The legislation of criminal motives meets the requirements of the principle of legality. The basic meaning of the principle of a legally prescribed punishment for a specified crime is: "No crime without express provisions, no punishment without express provisions". The legislation of criminal motive is conducive to the legalization of crime and the perfection of punishment; (3) Legislation of criminal motives is conducive to better protecting interests. With the complexity of society and the diversification of criminal motives, criminals often commit cruel and serious crimes. For example, the recent mass media reports of the massacre, such cases often need to understand the motives of criminals to commit criminal acts, which may be more conducive to the detection of cases.
(3) Specific suggestions on criminal motive legislation.
The author believes that China's criminal law can learn from the provisions of criminal legislation in Germany, Japan and other countries to realize the legislation of criminal motivation. Specific suggestions are as follows:
1. Perfection of the criminal motive clause in the general provisions of China's criminal law
(1) supplements the provisions of Article 20 and Article 2 1 of the General Principles of Criminal Law of China on self-defense and emergency avoidance. It is suggested to add: "If the actor has a legitimate motive and is forced to do it, but does not fully meet the formal requirements of self-defense, the punishment may be mitigated or exempted." "If the actor has a legitimate motive and is forced, but does not fully meet the formal requirements of emergency hedging, the punishment may be mitigated or exempted."
(2) Supplementing and amending the provisions of Article 56 of the General Principles of the Criminal Law on additional independent application of deprivation of political rights. It is suggested to add: "A perpetrator who intentionally commits a crime has a very bad motive and causes serious consequences, and should be deprived of political rights."
(3) Amend Article 6 1 on the factual basis and legal basis of sentencing. We can refer to the practices of Germany and Japan, add specific sentencing standards to the provisions of the criminal law, and at the same time legalize discretionary circumstances such as criminal motives, so as to upgrade them to statutory circumstances. The specific provisions can be expressed as follows: "When deciding the punishment, criminals should be sentenced according to the facts of the crime, the nature and circumstances of the crime, the motive and purpose of the crime and the degree of harm to society, in accordance with the relevant provisions of this Law."
2. Improve the provisions of criminal motives in the specific provisions of China's criminal law.
In the specific provisions of criminal law, we should refine some charges and clarify their criminal motives, such as intentional homicide. Foreign criminal laws generally set up the crime of murder with indignation separately, thus forming one of the charges juxtaposed with ordinary murder. In my opinion, these special circumstances should be listed and the upper or lower limit of punishment should be set within the scope of ordinary homicide. The author believes that the following supplementary provisions can be made to the legislative provisions of the crime of intentional homicide in China: "Intentional homicide, in any of the following circumstances, shall be sentenced to fixed-term imprisonment of more than 3 years 10 years; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of 10 or life imprisonment: (1) intentionally killing people out of passion and indignation because of the victim's insult, persecution or abuse; (2) The lineal blood relatives kill the baby during or after delivery in order to hide their shame, or they can't raise it, or they have a particularly poor motive; (3) Other circumstances are minor. "
In the specific provisions of China's criminal law, the provisions on the crime of circumstances are usually expressed as "serious circumstances" and "particularly serious circumstances" The legislative interpretation and judicial interpretation also list the main plots of the plot crime, but the expression is still slightly rough. For example, the relevant explanations of criminal circumstances such as theft and corruption in China's criminal law are determined from the perspective of amount, without considering the subjective criminal motives of the actors. The author thinks that we can modify the specific explanation of the plot of the plot crime, fully consider the criminal motivation of the perpetrator, and improve the provisions on criminal motivation in the specific provisions of the criminal law.
It is true that the legislation of criminal motives has brought great challenges to criminal legislation. At the same time, the diversity of motives also puts forward higher requirements for the comprehensive quality of judges and whether judges can correctly distinguish criminal motives from criminal purposes in the process of handling cases. The author looks forward to the realization of criminal motive legislation, and believes that this realization will surely become a new bright spot in criminal legislation.
[References]
[1] Selected Works of Marx and Engels: Volume 4. People's Publishing House, 1995.243.
[2] Sue. Criminal law: revised edition. China University of Political Science and Law Press, 199938+0438+0 page.
[3] Tararukhin, Russian. Socio-psychological characteristics of criminal behavior, International Culture Publishing Company, 1977.40.
[4] Qiu. Theory of Criminal Motivation, Law Press, 1988.70.
[5], [8] translated by Xu Jiusheng and Zhuang Jinghua. German Criminal Code, Law Press, 2000.56, 16 1.
[6] Zhang Mingkai translation. Japanese Criminal Code, Law Press, 2006.23.
[7], [9] Pan Deng translation. Spanish Criminal Code, China Political Science and Law Publishing House, 2004. 10, 56 pages.
Authors: People's Court of Funing County, Jiangsu Province
Source: China Court Network