Criminal Law (Part)

Author: Chen Zhonglin
Publisher:
Publish Date: 2003-10-01
Features: Through the efforts of all the contributing editors, the "Criminal Law" (Part Two) of the 21st Century Series of Basic Textbooks for Law in Higher Education has finally been printed. According to the writing requirements of this series, the chief editor should have a preface for the users, discussing the use of the textbook. I have never served as a chief editor and have never seriously written a "preface." After much deliberation, I still don't know where to start. I can only take this opportunity to share some of my thoughts on this textbook. "Worldview is methodology," and the basic stance of criminal theory can be said to be the fundamental method of learning criminal law. As the chief editor of this textbook, the first thing I must state is that the "common understanding" is the principle of its compilation, whether in the arrangement of the theoretical system or the discussion of basic viewpoints. Therefore, the content of this textbook does not necessarily reflect the academic views of the compilers, especially my own. It is not appropriate for me to explain my fundamental stance on criminal theory here. However, I believe that even when it comes to explaining the use of this textbook, it is absolutely necessary to remind its users of the following basic facts:
1. Criminal law is a department of law that primarily uses punishment as its means of regulation. Whether or not it employs punishment as a sanction is the only formal distinction between criminal law and other departments of law, and it is also the only starting point for empirically examining the fundamental attributes of criminal law and establishing a scientific theoretical system. Therefore, correctly understanding the content of punishment and the social relationships it represents is the prerequisite for correctly understanding all basic categories of criminal law. Even from a superficial examination, it is not difficult to discover two fundamental facts: (1) The power of punishment is a coercive power of the state during peacetime, and the application of punishment is the result of the state mobilizing all coercive forces during peacetime (including coercive measures in legislation, judiciary, and administration, and even deploying armed police forces as the army). (2) Punishment primarily involves the deprivation or restriction of the fundamental rights of citizens, such as life, freedom, property, and political rights. The two characteristics of punishment indicate that the social relationships embodied by this unique punitive measure of criminal law are the relationship between the state's punitive power and the fundamental rights of citizens, such as life and freedom, and the relationship between the state power representing society and the individual fundamental human rights of members of society. Therefore, the question of under what circumstances the state can limit or deprive the fundamental rights of citizens, including life, is the foundation of the entire criminal law system and theory. Whether it is the basis or the limit of the state's punitive power, or whether it is the unique scope of regulation of criminal law or the fundamental standard for identifying crimes, can only be sought from the answer to this question. Without this, neither the tasks, functions, basic principles, essence, and conditions of crime in the general theory of criminal law, nor the determination of the specific content of crime and punishment norms in the specific theory of criminal law, can be correctly understood.
2. From the perspective of the limit of state power, depriving or restricting the fundamental rights of individuals through punishment can only be a "necessity" for a state whose fundamental purpose is to maintain and develop the well-being of every member of society. From the perspective of the relationship between criminal law and other departments of law, the use of punishment by the state means: (1) The behavior regulated by criminal law must violate the norms of other departments of law, but the punitive measures of other departments of law cannot effectively prevent such behavior; (2) If the above violations of the norms of other departments of law are not adjusted through the unique punitive measures of criminal law—punishment—the corresponding legal system will be fundamentally threatened. This characteristic of behavior subject to punishment indicates that the overall protection of the state legal system representing the well-being of all members of society and the maintenance of its effective operation are the only justifications for the state to limit or deprive the fundamental rights of citizens, including life. The relationship between the state's legal system and the social values it upholds, and the fundamental human rights of citizens, is the unique object of regulation of criminal law. The harm to the state's legal system and the social values it upholds is the fundamental social attribute of crime. Protecting the state's legal system and the social values it upholds from the harm of crime is both the fundamental task and the fundamental function of criminal law, as well as the only basis for the state's punitive power and the fundamental purpose of punishment.
3. Like any other human behavior, criminal behavior can only be the existence and expression of the subjective initiative of the perpetrator, and the result of the perpetrator transforming the negative content of their will and consciousness into objective reality. The so-called social harmfulness of crime can only be the objective possibility of the perpetrator's attitude of hostility, contempt, or indifference toward the state's legal system and the social values it upholds, which is contained in the subjective fault. From the perpetrator's perspective, this is both the essence of crime and the only basis for the perpetrator to bear criminal responsibility. Criminal behavior is the behavior implemented under the control of subjective fault, and the objective aspect of criminal behavior can only be the manifestation of the content of subjective fault in reality: whether the will and consciousness state contained in the subjective fault of the perpetrator are manifested in reality, what will and consciousness state contained in the subjective fault of the perpetrator is manifested in reality, and to what extent the specific content contained in the subjective fault of the perpetrator is manifested in reality, are the only bases for determining whether a behavior constitutes a crime, what kind of crime it constitutes, and what form of crime it constitutes.
In addition to the above points that traditional criminal theory overlooks, it may also be necessary to repeat some well-worn issues here. Criminal law is a part of legal studies, and criminal law and the basic theory of law have a relationship of the special and the general. The development of criminal law cannot be separated from the guidance of the basic theory of law, and the achievements of criminal law should naturally continuously enrich and deepen the content of the basic theoretical research of law. There are many places in criminal law that contradict the basic theory of law. When everyone finds that the content of this textbook does not align with the basic theory of law, I hope everyone will use their brains: seriously think about whether this content is an expression of the specificity of criminal law and the enrichment of the basic theory of law, or whether it deviates from the foundation of law and needs to be corrected according to the basic theory of law. Criminal law is the "guarantee law" of other departments of law, and the behavior regulated by criminal law is primarily the violation of other departments of law in most cases. Therefore, correctly understanding the relationship between criminal law and other departments of law and truly grasping the specific content of the other departments of law as the premise of criminal law is the prerequisite and foundation for truly mastering criminal law theory, especially the theory of specific criminal law. Without this foundation, criminal law theory is not only "rootless trees" and "waterless wells," but also "silver-plated gun barrels" that look good but are not useful. If applied in practice, it will definitely cause problems.
Although there may be different opinions, I have always believed that criminal law learning should adhere to the view that "the general theory is the body, and the specific theory is the application." The general theory of criminal law is the foundation and core of all criminal law theory, and the specific theory of criminal law should be the result of applying the theoretical analysis of the general theory of criminal law to explain the crime and punishment norms stipulated in the specific theory of criminal law. The general theory of criminal law certainly needs the corresponding provisions in the specific theory to be specified, but without seriously mastering the content of the general theory of criminal law, it is not only possible to make the mistake of "white horses are not horses," excluding crimes that are entirely stipulated in criminal law from the category of crimes, but also possible to fall into the quagmire of "all animals with tails are horses," treating all behaviors that merely formally meet the provisions of the specific theory of criminal law as crimes.
Finally, I cannot help but mention the features of this textbook. When you pick up this textbook, you may have noticed that there is a "[Summary]" and a "[Key Issues]" before each chapter of the main text, and a "[Judicial Application]" and a "[After-Class Review]" after the main text. The feature of this format is that it allows users to clearly understand the main content and key issues before studying each chapter of the main text; and the "[Judicial Application]" and "[After-Class Review]" after each chapter of the main text give users a chance to review and master the key and difficult points of each chapter. I sincerely hope that this format will be more helpful for beginners to gradually enter the of criminal law.