Theoretical Research on Open Criminal Constituent Elements

Author: Liu Yanhong
Publisher:
Publish Date: 2002-07-01
Features: Crime is an act that meets the constitutive elements stipulated in the Criminal Code, and the constitutive elements are thus legal types of crime. Open constitutive elements are an inevitable type of constitutive elements in both criminal legislation and criminal theory. Due to the legislator's failure to describe the requirements of the constitutive elements in detail, it is still impossible to determine whether an act constitutes a crime solely based on the textual description of the constitutive elements in the Criminal Code. Additional supplementary judgments by the judge are required for such constitutive elements, which are known as open constitutive elements. This type of constitutive element is a new way of stipulating criminal constitutive elements that emerged alongside the shift from strict to relaxed adherence to the principle of legality in criminal law. The criminal law academia in China has not studied the theory of open constitutive elements. This paper argues, using historical, comparative, theoretical, and empirical methods, that the recognition of open constitutive elements in China's Criminal Code is characterized by judges supplementing the application of the law, shifting the focus of criminal law application from the sovereign state to the judge. Recognizing the theory of open constitutive elements is helpful in expanding and deepening the research on the theory of criminal constitutive elements in China's criminal law; it is helpful in changing the rigid interpretation of the principle of legality and the mechanical application of criminal provisions in practice; it is helpful in altering the current abnormal state where the application of China's criminal law is overly controlled by judicial interpretations from the highest judicial organs, and establishing a criminal law application system centered on the judge's discretion. It is also helpful in providing support for China's judicial system reform from the perspective of substantive criminal law.