Viewpoint | On the Importance of Social Harmfulness as Crime Evaluation
Published:
2024-10-08
The evaluation of social harm crime should adhere to the historical point of view, a comprehensive point of view, from whether to conform to the natural law of the country to judge the case; social harm crime evaluation, but also a reasonable grasp of the relationship between the social and political evaluation of crime and legal evaluation of the two.
[Abstract]]The social harmfulness of crime is the unity of quality and quantity, social harmfulness is the qualitative element that crime evaluation must have, and serious social harmfulness is the objective standard of the amount of social harmfulness of crime. The determinants of the severity of social harm should be considered from three aspects: the object of infringement, the way, means, time and place of the consequences, and the subjective factors of the perpetrator. The evaluation of social harm crime should adhere to the historical point of view, a comprehensive point of view, from whether to conform to the natural law of the country to judge the case; social harm crime evaluation, but also a reasonable grasp of the relationship between the social and political evaluation of crime and legal evaluation of the two.
Key words]crime evaluation social harmfulness determinants social political evaluation and legal evaluation
Article 13 of the Criminal Law stipulates: "All acts that endanger State sovereignty, territorial integrity and security, split the country, subvert the regime of the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, infringe upon State property or property collectively owned by the working masses, infringe upon citizens' private property, infringe upon citizens' personal rights, democratic rights and other rights, and other acts that endanger society, those who should be punished in accordance with the law are all crimes, but if the circumstances are obviously minor and the harm is not great, they are not considered crimes." It can be seen that crime must be a socially harmful behavior, that is, if there is no social harm, there will be no crime; the social harm of crime must also reach a considerable degree, that is, if the social harm is not large, it does not constitute a crime. Theoretically, the simplification of the principle of legality of crime and punishment, the one-sided copying of the constituent elements of crime and the neglect of the social harmfulness evaluation of crime, will result in the practice of non-social harmfulness and social harmfulness of the behavior is investigated as a crime, the result deviates from the purpose and perfection of the theoretical system of criminal law in China, but also violates the principle of modesty of criminal law to a certain extent, expanding the scope of attack, not conducive to the construction of socialist rule of law.
The social harmfulness of 1. crime is the unity of quality and quantity.
Any kind of criminal behavior has certain social harmfulness, which is the basic characteristic of crime. If a certain behavior is impossible to cause harm to the society, the criminal law should not stipulate it as a crime, and it will not be punished. Although a certain act has a certain degree of social harm, but the circumstances are significantly minor and not harmful, it is not considered a crime, which is determined by the principle of modesty in criminal law. The social harmfulness of crime is the unity of quality and quantity, quality is the social harmfulness, and quantity is the social harmfulness to the corresponding extent.
(I) social harmfulness is the essential element of crime evaluation
Any criminal act must not only violate the criminal law and conform to the constitutive elements of the crime stipulated in the criminal law, but also have social harm.
If we only see that criminals have caused such or such damage to a certain person or unit, but do not see the harm of crime to China's socialist social relations as a whole, it is impossible to truly understand the nature of crime.
(II) serious social harm is the objective standard of the amount of social harm of crime
The essential characteristic of crime is that the act has serious social harm. Therefore, the constitution of crime is essentially the constitution of serious social harm. All the factual characteristics of the constituent elements of the crime must naturally reflect the social harmfulness of the act and its degree, otherwise it is meaningless to establish the crime. The ability to reflect the social harmfulness of an act and its degree is an objective criterion for measuring whether a factual feature can be an element of a crime. Judging from the provisions of the sub-provisions of the Criminal Law of our country, many provisions clearly stipulate that "large amount", "causing serious consequences", "causing heavy losses" and "serious circumstances" are the elements of a crime.
Determinants of the magnitude of 2. social harm
Article 13 of the Criminal Law of China reveals the performance of all aspects of the social harmfulness of crime in terms of the object of crime through enumeration. These four aspects generally reflect the basic content of the social harmfulness of crime in our country. So, what are the determinants of the size of the social harm? The author thinks that it is mainly determined in the following aspects:
(I) violations of the object aspect
According to the provisions of the criminal law, the crime of endangering national security is more harmful to society than other crimes, because it violates national security, that is, national sovereignty, national territorial integrity and security, and the stability of state power. Crimes that endanger public safety are more harmful than those that endanger specific individuals, because they endanger the safety of people's lives and property.
The manner, means, consequences, time and place of the (II) act.
Whether the means of crime is fierce, whether it is cruel, whether it uses violence, to a large extent, determines the social harmfulness. For example, robbery is more harmful than robbery, theft and other serious. Both wartime crimes and peacetime crimes take the opportunity to commit crimes at the time of natural disasters (such as fires, floods, earthquakes), and the social harm is more serious.
(III) actor subjective factors
Whether the perpetrator was intentional or negligent; whether there was premeditation or not; whether the motive or purpose was despicable; whether the occasional crime was a recidivist or a repeat offender. The psychological impact of these situations on the public is very different.
Several issues that need attention in the evaluation of 3. social harmfulness crimes
The evaluation of (I) social harmfulness crime should adhere to the historical point of view, keep pace with the times, keep upright and innovate.
Social harmfulness is a historical category. With the development of society and the change of economy, the evaluation of social harmfulness crime should be adjusted accordingly. The same behavior, which in the previous period was harmful to the development of society, but in the current period is in line with the development of society, this situation is the change from harmful to harmless. For example, the crime of speculation under the planned economy in the past is not socially harmful and does not constitute a crime under the current market economy. This is also the significance of the establishment of the principle of "from the old and lighter" in the criminal law.
In practice, the law is stable, while the reality is developing rapidly, so some contents of the law will lag behind the reality. In order to ensure the impartial administration of justice, laws and applicable laws should be interpreted and applied in the light of changing realities, rather than rigid withholding of outdated laws and regulations. Under the premise that it takes a certain procedure and time to amend the legislation, it may be a better way to resolve doubts or make up for legal deficiencies through judicial decisions within a certain period of time.
(II) the evaluation of socially harmful crimes, we should adhere to a comprehensive view, see the essence through the phenomenon, and make the adjudication of cases conform to the principles of nature, national law and human feelings.
The evaluation of social harmful crimes should integrate various situations, not only the tangible and material harm, but also the harm to social politics and the social psychology of the public. To see the essence of things through the phenomenon. For example, it also causes death, some of which are intentional homicide, some of which cause death through negligence, and some of which are self-defense homicide. Such social harmfulness is from serious to light, even until there is no self-defense of social harmfulness. Item 4 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases (November 4, 1997) stipulates: "Stealing one's own property or the property of close relatives is generally not treated as a crime. If it is really necessary to investigate criminal responsibility, the punishment should also be different from that of committing crimes in society." In terms of punishability, this interpretation excludes or mitigates the theft of one's own or close relatives' property that meets the constitutive requirements of a crime and has criminal illegality, and is also based on the understanding of the nature of the crime that it does not have serious social harm or has less social harm. Therefore, to determine whether the behavior has social harm and the size of the harm, it is necessary to see the essence through the phenomenon of things, so as to grasp the essence of the behavior.
The adjudication of cases conforms to the principles of heaven, national law and human feelings. The principle of heaven is the universally recognized truth, the national law is the law formulated by the state, and the human feelings refer to human nature, social conditions and public opinion. To show the spirit of justice as the referee, to take the national law as the bottom line of the referee, and to take human feelings as the temperature of the referee (Note: Justice Hu Yunteng's words). For thousands of years, the public has always regarded whether the judgment of judicial cases is fair and whether the officials are upright as the fundamental standard of measurement.
(III) the evaluation of socially harmful crimes, it is necessary to reasonably grasp the relationship between the socio-political and legal evaluation of crimes.
As we all know, the essence of the doctrine of crime and punishment in feudal society is from the perspective of endangering the rule of the ruling class, with a strong political color, which belongs to the only theory of social and political evaluation of crime. There are two kinds of dangers in this unique theory: one is the subjectivization of the evaluation standard, that is, the evaluator simply relies on the individual's political judgment and political viewpoint to understand and judge the crime, but everyone often has different views and tendencies in the political concept, which makes the crime standard vary from person to person, leading to the subjectivization of the crime standard; the other is the variability of the evaluation standard, changes in the social and political situation often make people's political consciousness and political attitudes change accordingly. Simply understanding crime according to political evaluation criteria will result in different identification criteria for crime due to changes in the political climate, which will lead to the arbitrariness of crime identification. Many tragedies in the history of criminal law of new China have the shadow of the only theory of social and political evaluation.
The author believes that this kind of feudal society's crime and punishment arbitrariness, which completely abandoned the theory of the elements of crime, has been thrown into the long river of history; and the kind of political evaluation of social harmfulness and the legal evaluation of crime and punishment is completely opposed to the point of view is also undesirable. Only by combining the social and political evaluation of crime with the legal evaluation, and using the two rulers of social and political evaluation and legal evaluation to measure crime, can we draw a correct conclusion. There is no judgment that the former obeys the latter or the latter obeys the former.
4. epilogue
In recent years, there have been a series of cases in the society, such as the case of selling toy guns and being sentenced to life imprisonment, the case of hunting a sparrow, the case of migrant workers who were sentenced to heavy sentences for eating grapes, and the case of Yuhuan in Liaocheng, Shandong. A series of events have caused huge repercussions and widespread doubts in the society. The focus of people's doubts is that the behavior of the parties in the above-mentioned cases is not socially harmful or very small, but he was held criminally responsible and even punished severely. A series of criminal cases arising from the recent construction contract dispute cases in which the contractor pays the wages of migrant workers in advance and claims compensation, from the perspective of legal evaluation of the composition of the crime, its behavior is in line with the elements of the crime of false litigation, but from the perspective of social harm crime evaluation to consider whether it has serious social harm? Whether to reach the level of criminal law crime investigation? There is a great debate in the legal community.
The specific system of constitutive elements of crime cannot accommodate complex factual situations, and only the evaluation of socially harmful crimes can be summarized and inclusive in essence. It is true that "the crime is legal" and "the law does not stipulate that it is not a crime" is the criterion that we must follow, but it does not mean that we ignore or give up the evaluation of social harmful crimes. When evaluating whether an act involved in a case constitutes a crime, we must first make a legal judgment, that is, whether the act violates the criminal law and whether it conforms to the constituent elements of the crime stipulated in the criminal law; at the same time, we must also conduct a social and political judgment on the act, that is, conduct a social harm evaluation review to examine whether this act is socially harmful and what kind of social harm it has, whether the legal interests protected by criminal law have been violated, the extent of the violation, whether non-criminal means such as civil means or administrative sanctions or administrative penalties can be repaired, and whether criminal law means must be used to regulate them. We must resolutely prevent mechanical copying of the law, ignoring or abandoning the practice of reviewing the harm to society, with a view to correctly playing the role of criminal law.
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