Criminal Law Review (Volume 4)

Author: Chief Editor: Chen Xingliang
Publisher:
Publish Date: 1999-08-01
Features:
Fragment: The crime theory centered on social harmfulness is fundamentally a pre-empirical normative theory, inheriting the natural law theory of classical thought. Its prominent feature is the emphasis on the extranormative substantial evaluation of crime, which entirely reverses the logical structure of crime theory, making the substantial nature of crime absolutely dependent on the normative attributes of the act. Because, without (the meaning of) illegality in Chinese criminal law, there is no basis for criminal evaluation of the "essential attributes" of acts such as "social harmfulness." Thus, crime theory is made entirely normatively formalized here.
When we make a preliminary comparison between the concept of "social harmfulness" in Chinese criminal law and the concept of "danger" in German and Japanese criminal law, we can see that they are completely different categories in both essence and content: "social harmfulness" is an extranormative concept, while "danger" is a normative concept; "social harmfulness" is a pre-crime-constituent concept, while "danger" is a concept within the crime constituent; "social harmfulness" is a substantial generalization of the nature of behavior beyond the crime constituent, while "danger" is a substantial generalization of the nature of behavior based on the fulfillment of constitutive elements.
Because "social harmfulness" is entirely dependent on (the meaning of) illegality in Chinese criminal law (i.e., fulfilling constitutive elements), it can only be recognized as normatively formal in both theory and practice. In contrast, "danger," as one of the contents of the illegality requirement and a fact that must be proven, cannot be grasped merely in a formal manner. This is also why the concept of "danger" has long been a subject of debate in German and Japanese criminal theory, while the concept of "social harmfulness" in Chinese criminal law remains unchanged.
The reason "social harmfulness" and "danger" are compared here is that, in the absence of actual harm, the basis for punishing an act in Chinese criminal law is the "danger" inherent in the act, whereas in German and Japanese criminal law, it is the possibility of the act causing actual harm to legal interests—danger—which makes the act fulfilling constitutive elements possess a punishable substantial illegality—the specific, real, and urgent danger of actual harm to legal interests.
Therefore, here, both "social harmfulness" and "danger" are the substantial basis for the illegality and punishability of an act. Only in this sense are the two somewhat comparable.
This is precisely because in German and Japanese criminal law, "danger" is part of the content of the illegality requirement and a fact that must be quantitatively proven, while "danger" is a category of possibility. The theoretical proof of "danger" is extremely difficult at least at the current stage of social science development. Behavior science itself has not yet provided a satisfactory answer to questions such as the nature of danger, methods, standards, timing, and scope of danger assessment.
It must be noted here that, although Japanese criminal theory is almost entirely derived from German criminal law doctrine, there are significant differences in legislative ideas and normative structures. Japanese criminal theory after Miyake Eiichi has retained a strong objectivism, which is particularly evident in the issue of danger. Since Gallas and Stratenwerth systematically argued for the "theory of resultlessness" in the determination of the essence of illegality, it was quickly accepted by many young Japanese criminal law scholars, who used it as a theoretical basis to launch fierce challenges against the dominant traditional danger theory.
Starting from the premise that the purpose and function of criminal law lie in the protection of legal interests, they raised the banner of criminal law's modesty and argued that the essence of illegality is the lack of value in results. They opposed using abstract, hypothetical danger as the basis for punishing an act, instead advocating that punishable danger must be specific, objective, and real. For example, when a person fires a gun at a dead body, the act cannot and does not harm legal interests because legal interests do not actually exist at that time. If, at this point, the act is deemed to have a criminal punishable danger, then this determination of danger is not specific (referring to the object of the crime), but abstract; not objective, but subjective speculation; not real, but hypothetical.
What is declared punishable here is a purely subjective hypothetical danger lacking a specific object.