Author: Chen Xingliang, Peking University Law School
Source: Procuratorial Daily
The judgment of type and the judgment of individuality are actually the organic unity of general conditions and individual conditions, but the judgment of type between the two should be placed in the front, first of all, the judgment of type, and then the judgment of individuality, which only plays a supplementary role in the condemnation activity. If the judgment of type is abandoned and carried out in full accordance with the standard of individuality, then the legal standard of conviction will be trampled on and the principle of criminalization will be violated.
Conviction is not a mechanical activity, and there may be ambiguities in the law, and some theory is needed to help us complete the conviction. Conviction must follow certain basic rules, which should include the following four points:
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Objective judgment precedes subjective judgment
The conditions for the establishment of a crime include both objective and subjective conditions, and under the two types of criminal composition systems, these conditions need to be met, but the question is whether to make an objective judgment or a subjective judgment first.
In our view, objective judgement should be made before the accuracy of the conviction exercise can be guaranteed, a rule established in the three-tier system through the logical progressive structure of the hierarchy.
In the practice of the four-element system, the rules of objective judgment before subjective judgment have not been institutionally guaranteed, and the order of objective judgment and subjective judgment can be carried out arbitrarily, which on the surface is only a simple order problem, but in fact, the impact of this order problem is very huge.
At present, in the practice activities of the judicial department, due to the lack of clear objective judgment before the subjective judgment of the rule constraint, many cases will produce a wrong understanding.
There is a case: how to characterize a driver who applies for a job in a false identity to drive away the unit car. The facts of the case are that Wang Mou applied for a driver at a clothing company with false identity proof, and on the first day of work, he took the opportunity to drive the car away on the way out of the car and took possession of it for himself. Subsequently, Wang took possession of the cars of the three companies by the same means, and the amount of illegally obtained cars ranged from 100,000 yuan to 200,000 yuan.
In this case, Wang wanted to illegally possess the car before applying for employment, so he forged his ID card and driver's license to apply, and took the opportunity to drive the car away when accepting the driving task of the unit, taking possession of it for himself.
Some people believe that Wang Mou constitutes the crime of fraud, the reason is:
First of all, the subjective intention of Wang's fraud crime runs through the whole case, the purpose of Wang's illegal possession arises before obtaining the driver's position, under the cover of fictitious facts and concealment of the truth, with the subjective intention of defrauding the property, a series of acts such as applying for employment, holding a position, approaching the property, and obtaining property are carried out, and the goal is clear, the action is thorough, and the process of behavior runs through a clear fraud intention.
Secondly, Wang's objective performance is in line with the characteristics of the crime of fraud, and it is precisely because of the fictitious facts and the means of concealing the truth that the victim falls into a mistake in understanding, so as to voluntarily deliver and dispose of the property, so that the purpose of Wang's crime can be realized, and this objective performance is completely in line with the characteristics of the fraud crime. Here, the disposition of property rights should not only be understood as the disposition of property ownership, but should also include the disposition of property and possession. Moreover, in judicial practice, as long as the act of transferring property is carried out, the victim is already at great risk of losing the property, and the victim will not think that he is delivering the ownership of the property when he delivers it.
From such reasons, we can see that the author of the case first said that Wang Mou had subjective intentions, and then said that he had committed fraud, and first made a subjective judgment and then made an objective judgment, so there was an error.
If the three-tier theory is followed, it is clear that the crime of usurpation of office should be convicted in this case. The key to this difference is whether to make an objective judgment first or a subjective judgment first. If an objective judgment is made first, the defendant's application behavior is not a fraudulent act, even if it is for the purpose of fraud, then the application behavior is not a constituent element of fraud.
The constituent elements of the crime of fraud should be the act of fabricating facts, concealing the truth, causing the victim to fall into a wrong understanding and dispose of the property, and illegally taking possession of other people's property. However, the act of applying for employment, even if a false identity card is applied, cannot be regarded as a constituent element of fraud. His constitutive element is to take advantage of his position as a driver to take possession of the company's property, and such an objective element determines that the act is an act of occupation of office. After determining this objective judgment, the subjective elements are judged, and there is subjective intent to illegally possess.
One principle that needs to be explained here is that objective constituent elements have deliberate regulatory functions. It means that objective behavior does not depend on subjective intent to exist. But subjective intent exists in dependence on objective behavior.
Judging from this case, he used his position to facilitate the possession of the property of his unit, which is an act of occupation of his position from the perspective of objective behavior; and from the perspective of subjective purposes, he has the purpose of fraud, on the basis that his act of obtaining the status of his post has the subjective purpose of fraud. Therefore, it does not affect the conviction, only the sentencing.
If you first make a subjective judgment and think that the perpetrator subjectively has the intention to defraud, and then the objective behavior is a fraudulent act, and he has a subjective fraud purpose, then objectively how can it not be a fraudulent act? That would be one error leading to another.
Such errors are common in the judicial process.
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Formal judgments precede substantive judgments
That is to say, in the establishment of a crime, it must contain both formal judgment and substantive judgment, both of which are necessary, the problem is that the order is sequential, it must be a formal judgment before the substantive judgment, and it cannot be a substantive judgment before the formal judgment, and the substantive judgment cannot be replaced by the formal judgment.
Formal judgment is very important for the composition of the crime, because some acts can be excluded through formal judgment, and often no substantive judgment is required. When the formal requirements of the act are met, it is logical to make a substantive judgment, and then make a formal judgment and then make a substantive judgment. If the formal requirements are met and then denied in the substantive judgment link, then the conviction activity is terminated.
Therefore, the principle of making formal judgments first and then making substantive judgments is also to be followed in conviction, and many mistakes will occur if this principle is not followed.
In a true-world case, the Supreme Court's 2004 gazette published a case of deliberate destruction of someone else's property heard by the Shanghai Jing'an District Court:
The defendant had a vendetta against the victim and wanted to retaliate against the victim, because the defendant learned that the victim was speculating in stocks, he stole the victim's stock trading account and password, and then secretly sneaked into the victim's stock account, adopted the method of buying high and selling low, violated the general operation method of stock trading, and caused the victim's property to lose 190,000 yuan.
The judgment argues that the defendant's conduct constitutes intentional destruction of other people's property, first citing the determination of the concept of crime in article 13 of the Criminal Law to argue that the defendant's behavior is socially harmful; then enumerating the determination of the tasks of the Criminal Law in article 2 of the Criminal Law: combating crime and protecting citizens' lawful property; and then quoting the content of the Criminal Law on the crime of destroying other people's property. First make a substantive judgment, explain that his behavior is socially harmful and the object of the criminal law, and then say that his behavior constitutes the crime of destroying the property of others. What is wrong with the logical process of this argument?
The crime of destroying property is characterized by the loss of the property of others, and this judgment is correct, the crime of intentional destruction of property is to cause the property of others to be damaged, but the act of causing damage to the property of others is not the crime of intentional destruction of property. The key is whether the perpetrator adopts a method of destruction to cause the property of others to be damaged, which is the key to judging whether the act constitutes the crime of intentional destruction of property. The judge who heard the case first made a substantive judgment and then made a formal judgment, while the criminal law stipulates that the crime is to intentionally destroy property, not to cause loss of other people's property.
In fact, in this case, there is no need to first discuss whether it is socially harmful and whether it has caused damage to the property of others, but should first analyze the explicit provisions in the criminal law. The explicit provisions in the law are essentially a formal judgment, and with regard to the analysis of "acts of destruction", destruction is a physical destruction, of course, a kind of destruction, and the loss of functionality is also a kind of destruction, but "destruction" cannot be understood as an expanded understanding. The problem is that the judge did not discuss the issue, but directly made a judgment and came to a conclusion.
According to the principle of criminal law, it is necessary to first make a formal judgment to see whether the act is a constituent element of the act stipulated in the criminal law, to make a formal judgment, and then to see whether the act is harmful. Only by first making formal judgments and then making substantive judgments can the function of substantive judgment be limited, and if there is no such substantive element, even if the form has elements, it cannot be criminalized. If the substantive judgment is made first, and the formal judgment is replaced by the substantive judgment first, then the substantive judgment has the effect of direct criminalization, which will make a wrong understanding of the law.
There is now a dispute between formal hermeneuticism and substantive hermeneuticism, or between formal criminology and substantive criminology. Some scholars advocate the theory of substantive crime or substantive interpretation, and they believe that substantive judgment should be made first when determining a crime; other scholars advocate formal crime theory or formal interpretation theory, and they should emphasize formal judgment, and formal judgment precedes substantive judgment.
Some scholars have pointed out that in practice, people are accustomed to making substantive judgments first, then looking for legal basis to compare, and then judging, and it is very common to replace the phenomena and practices of formal judgments with substantive judgments or to make substantive judgments first and then find legal bases. This act of judging substantively before form is precisely due to the impact of our emphasis on social harm in the past.
Because in the past, we regarded social harm as the ontological characteristics of crime, and regarded criminal illegality and punishability as the formal elements and legal consequences of crime. It is precisely under the influence of this understanding that social harm is often analyzed when handling cases, which is itself irrational.
In the "three-tier" theory, whether an act constitutes a crime is also to see whether it has the constituent elements of the crime, which is actually a formal judgment, and the substantive judgment is judged in the context of illegality, and if the act does not have the constituent elements, it will not be advanced to the stage of illegality. Therefore, the arrangement of the "three classes" theory for the logic of criminology itself makes the formal judgment precede the substantive judgment, and it is impossible to make a reverse judgment, which is caused by the unique theoretical structure of the "three classes" theory.
In the past, we have often emphasized the importance and rationality of substance and the social harmfulness of behavior, and this view still dominates.
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Type judgments precede individual judgments
In criminal law, there is a type of judgment and at the same time there is an individual judgment, both of which are indispensable.
In the three-tier criminological system of the civil law system, the judgment of the constituent elements should be precisely a type judgment. In criminal law, this type of judgment is very important, in some cases, normative judgment, factual judgment is easy to turn it into a type of judgment, and value judgment, subjective judgment is more characteristic of individual judgment. Like objective behavior has the characteristics of type, like a basket, whether it can be packed or not, its boundaries are very clear, but the subjective intentional typological characteristics are not so obvious.
In the three-tier criminological system, it is often through some technical means that the judgment that was originally individual has become a type judgment, and the most typical judgment is the illegal judgment. The judgment of illegality is a kind of value judgment, and it is a substantive judgment to see whether the act that has the constituent elements is infringing on legal interests.
Substantive judgments are originally characterized by individual judgments, but by setting up a cause of obstruction, the reasons for obstruction are legalized and typed, so that this judgment of illegality, which is originally a judgment of value and individuality, is transformed into a judgment of type. Therefore, according to the criminal theory system of the three classes of the civil law system, when judging illegality, it is not a positive examination of whether the act is infringing on legal interests, but from the negative side, whether the act belongs to some kind of illegal obstruction, if it belongs to a certain illegal obstruction, there is no illegality, if it does not belong to any kind of illegal obstruction, then it is illegal.
The causes of illegal obstruction have certain type characteristics, such as legitimate defense and emergency avoidance have their own conditions, and some other illegal obstruction causes are also typed, all of which have their constituent elements. In this way, through the negative type judgment, the value judgment and the substantive judgment become the type judgment.
Nevertheless, the judgment of individuality in criminal law is still indispensable, and there are a large number of individual judgments in criminal law, such as whether there is a possibility of expectation. That is, in a specific situation, although a person has committed an illegal act, the law can not expect him to carry out a legal act, if the law cannot expect him to carry out a legal act, then the act he performs does not have the possibility of expectation, and it does not have subjective attributability. Therefore, this anticipatory possibility is a very individual judgment, based on a specific person's situation in a particular situation and his subjective and objective elements to make a comprehensive judgment, with the characteristics of individual judgment.
This kind of individual judgment has also developed general judgment criteria in the criminal law of civil law systems, for example, there are different criteria for judging whether there is a possibility of expectation, there are objective standards and subjective standards. In the objective standard, it also includes the social average person standard, that is, the so-called average person standard, according to the average person standard to judge whether the average person in the society will carry out illegal acts in this specific situation, so as to determine whether he has the possibility of expectation at that time, this ordinary person, the average person judgment standard is proposed, so that the individual judgment has the characteristics of general judgment.
However, if there is only type of thinking, only considering the generality and the uniformity of the conditions for conviction, it is possible to make individual situations lack of consideration, lack of care, because the phenomenon of crime is very different, the perpetrators are also very different, there are many individual elements if completely ignored, ignored, and completely convicted according to general standards, then the legitimacy of this conviction is still questionable, in this case it is necessary to make individual judgments, taking into account the special situation of individuals.
Therefore, this type judgment and individual judgment are actually the organic unity of general conditions and individual conditions, but the type judgment between the two should be placed in front, first of all, the type of judgment, and then the individual judgment, which only plays a supplementary role in the conviction activity. If the judgment of type is abandoned and carried out in full accordance with the standard of individuality, then the legal standard of conviction will be trampled on and the principle of criminalization will be violated.
It can be seen from this that the relationship between type judgment and individual judgment and the meaning of value theory are what we must profoundly grasp.
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Factual judgments precede value judgments
In conviction activities, there are both factual and value judgments. It should be said that these two judgments are different: fact is a question of whether there is or not, while value is a question of evaluation. In the theory of the composition of crimes in civil law systems, the constituent elements should belong to the category of facts, including behavioral facts and psychological facts. Illegality is the value evaluation of the facts of the behavior, and responsibility is the normative evaluation of psychological facts.
In this case, conviction can be divided into two logical levels: one is the determination of facts, and the other is the evaluation of value. Value evaluation must be strictly based on facts, so factual judgments must precede value judgments.
In the theory of the composition of crime in China, there is no strict boundary between factual judgment and value judgment, and in some cases it even confuses the factual problem with the value problem, so as to replace the factual judgment with the value judgment, which will lead to the consequences of the crime of discord.
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