German criminal law on the free exercise of the theoretical model because its reference to China

Abstract: Theory and the cause of Liberty, "the principles of behavior and responsibility exist," conflict, on the cause of Liberty The punishment debate has been there. In the theory of German Criminal Law scholars, there are two viewpoints in a fierce debate : the exceptional patterns and behaviors that model I will focus on the content of these two models and discusses the advantages and disadvantages. from the German Criminal Law because the free exercise of the legislative model for the depArture, and with other civil Law countries, legislation model comparison, to find legislation for the development of China's approach has a theoretical reference.

Paper Keywords: Cause Free Legislation Punishable
Cause Free continental Criminal Law is an important theoretical issue, the reasons for Germany as the cradle of Liberty, the reason for the theory is very much with the free exercise of Research value. German Criminal Law for its rigorous academics, fine but with the logic of acres thinking, see lots of reasons put forward the theory of free exercise, become a big wonderful theory of Criminal law.

First, because the concept of Liberty
The so-called cause of liberty, a learning philosophy that refers to the behavior of people with the ability of the state responsibility for acts committed or the state could have predicted, but the responsibility of the incapacitated or when the ability to achieve the behavior, and Ding's scholars believe that: "The reason the white from the behavior can be understood as means ability to act in the state responsibility for acts committed, or in this state at least predictable behavior, and to the incapacity or full responsibility for the loss of ability time was only achieved behavior "will be interpreted as another scholar:" If the capacity of state responsibility in the absence of an act or omission caused by wrongful consequences, and the behavior is due to be implemented under the responsibility of capacity by the intentional or negligent acts (as or as), then have the responsibility to capacity. "I believe that the concept of the above scholars, the original concept of the free exercise to include the following: (1) has the responsibility to act in the later state attitude held by a deliberate act or negligence. (2) the ability of the perpetrator at no obligation or limitation of liability under the state capacity to implement the act. (3) ability to act in the state has the responsibility to act and the implementation of the reasons no responsibility for the resulting ability or ability to limit liability under state behavior of the implementation of the Q with the results of causality. But no matter what kind of concept will no doubt with the German criminal law theory with the "responsibility doctrine" principles of conflicts. And suddenly this contradiction, On the one hand into the reasons for the theory construction and improvement of the free exercise of a big problem, but on the other hand, is just one net interference prompted many scholars in the direction from the cause of Liberty on punishment theory to explain, so as to promote the cause of Liberty development of the theory.

Second, the German criminal law can be punished because of the free exercise of the theoretical model based on
(A) the exception mode
This model was first proposed by the Hruska, according to this model, because the free exercise of the Criminal Punishment for the performance as a be justified by the common law against the fundamental principles of Article 20 exception. German criminal law General Code, Article 20 provides: "The perpetrator behavior, mental disorders as pathological, the depth of confusion, mental or other serious mental than abnormal and can not foresee their actions illegal, or according to their understanding of the behavior, not criminally responsible. "This is an act that requires people" act cloth application constitutes "ability to be guilty. And based on the exception model is based on the role of customary law, and ability to become responsible application of the provisions of the exceptions. In Germany, a minority who hold this view, such as the authority <"German criminal Fadun Ke Books>> pointed out:" whether the perpetrator has the responsibility to capacity, according to the situation to determine behavior (Article 20: 'actors in the act '). on the issue, although the law does not require, but as recognition of customary law, exceptions, was undoubtedly the cause of Liberty (Actioliberaincausa). "
In my view, this model is not desirable. First, Breaking the exception of the traditional theory of criminal law requirements "with the ability and responsibility to implement actions in the" principle, only to "customary law recognized exceptions" as the cause of Liberty argument The punishment is untenable reasons. Second, "" Federal Court Criminal Case Set>> Volume 42, p. 235, p. 241 is now clear that: "should not be an exception mode and <" German criminal law Code>> Section 20 clearly consistent with the original text, according to which guilt capability must exist in the implementation of the composition acts. According to this reason, the reason is not as consistent with the free exercise of the principle of (K0inzidenzprinzip) sense in the Judges Law or as an exception ... ... ... ... to recognize customary law. "So obvious exception to the limitations of models, as Taiwan scholars pointed out that" such an exception is certainly a vacuum of virtual (Fiktion) only. "

(B) Elements of Pattern
This doctrine attempts to look within the framework of the existing theory can be punished because of the free exercise of the basis that the penalty for the cause of liberty is no obligation based on ability is not the result of the state act, but under the full responsibility for the capacity of the reasons for behavior . in how to conduct a reasonable explanation for the reasons that there are three views:
1. Responsibility for behavior reasons that this point of view that has the ability culprit responsible behavior is the object of accountability, because the results of behavior and behavior, between the results, if the causal link can be identified, the cause of Liberty can be held criminally responsible. From the surface point of view, this view will determine the responsibility of capacity ahead of time, but will act as the reasons for the implementation of behavior, can solve the cause of Liberty could be fined and the "duty doctrine" conflicts in principle, but given the original act "implementation" of the apparent lack of theoretical basis for practice.

2. Indirect Criminal similar to saying that this view is that: "Portrait Indirect criminal acts as no obligation to use their ability to arouse the results of the behavior of state, because the reasons for setting behavior recognition, in order to implement the stArt, so the ability to implement the same behavior and responsibility in thousand fully established principle. "First, the view point above kinds of behavior will be considered as reasons for the implementation of behavior, the behavior of the reasons for setting the start time as a practice, after I come to the view plane unreasonable argument. Second, Indirect criminal theory to explain the original A by the action theory has its contradictions: the latter advocates limited ability to act in the original white state can be established by the act, while the former can not be used to limit the capacity to man-made object, which then asked Guilt is difficult to constitute a cause of late in addition to the free exercise to do when the explanation.

3. The doctrine is a compromise that German criminal law theory of communication, said the reasons for advocating the free exercise to learn intentionally Indirect criminal theory to solve the problems of their town of punishment, but the reason for the fault of the free exercise of the reasons for the behavior is the responsibility of accountability, since the solution because A Hui from the behavior of the "responsibility doctrine" principles of conflicts. such as Hansi Hai fierce leek Xiyemoke, Thomas Siwei Ghent said: "In recognition of the original intent did not exist too free exercise of the principle of responsibility rebel problem. why not think so, because the actors are always fully responsible to himself deliberately caused by the ability of the state is not obliged to implement as a deliberate means to conduct deserve Elements ", and the reason for the fault free behavior, then said:" If the perpetrator intentionally or negligently, grabbing his incapacity guide no obligation or ability (or diminished responsibility) state, and can be estimated at this time, he saved the whole will achieve a particular under the criminal negligence of the constituent elements to fault can be identified with the reasons for Liberty. "and Franz von Dr. Li Site that:" it (the reason Liberty deliberately) is possible, as we crazy or intoxicated persons can use to achieve our objectives as tools, because in them, and can be deterministic, although the law does not meet, but has not been ruled out, "and" an important moment (as opposed to when the results occur, but to have a causal chain), already Responsibility. "
The author believes that a compromise that advocated the case of difference between intentional and negligent is more reasonable to consider, but the helmets were discussed based on the free exercise when it is not solved because the responsibility is with the doctrine of contradictions. As previously argued that the reasons for the recognition of the free exercise of deliberate too there is no violation of the principle of liability issues, because the perpetrator will intentionally caused no responsibility for their own ability to act behind the state as a means of intentionally. merely a basis for discussion at this level, but not the same depth the reasons for the implementation of behavioral acts relationship, is difficult to say that the doctrine of compliance "with the ability and responsibility to implement actions in" principle.

Recently, according to the description of the different point of view, a "scalable solution" also brought up, although this approach will be his ability to put a non-state itself is responsible for thousand acts as a preparation, however, later in 20 state of the composition acts in the implementation of the imputation, but it is associated with such prior conduct. Therefore, Shite Lun want to put the meaning of Article 20, "constitutes conduct" concept, in a functional guilt the sense of blame, extending to species itself is only preparatory to the ability of self to become something up without guilt. This idea is also to develop the Japanese criminal law field. west of the original meaning of Marxist professors stand on the position of "conduct and responsibilities of both There "was amended to make the principles that determine the ability of responsibility includes the responsibility of evaluation, including violations of the act point to the meaning of human decisions, actions should be as a means for the implementation process to be sure. If a decision through the small mean a behavior, and this means the decision is in the ability of the state have the responsibility to make, then it should be that if one person acts as a responsibility of all ability to take full responsibility. The reason for Liberty, it can cause behavior that is and results of behavior is run through 'a means of decision behavior. Taipa original act only preparatory acts to arouse the result is the behavior of the text (results behavior) is to implement behavior. It should be recognized not "responsible thousand capacity" and "implementing acts "At the same principles exist, but the ability and responsibility to the principles of behavior at the same time. The scholars explain this theory can help us further understand this' theory of theory meaning. that the doctrine of the cause of behavior as preparatory acts, but will principle of responsibility in the "practice act" for the behavior of the expansion of understanding, which includes the reasons for actions and results of behavior, so that the culprit does not violate the free exercise of the "responsibility principle." Links to Research Papers Download http://www.hi138 . com I believe that the doctrine will be understood as acts preparatory acts because it is more reasonable, but the reasons should be limited to a deliberate act, not including the fault. fierce preparatory stage for the criminal acts of people embarked on the preparation of crime and start behavior, the perpetrator is a clear and premeditated criminal intent, so this stage only the perpetrator's subjective state of mind deliberately, and can not be the fault. that this theory applies only in the small Cause Free intentional act, rather than including negligence. and Germany, some scholars do not agree, "will introduce the concept of behavior extended to practices". They believe that when legislators "in the implementation of the composition acts" requires that the perpetrator's guilt capacity, not in small law to understand the meaning of composition that, in the preparation stage is not implemented some of them ... ... This is just the kind of terms the line at the game exist constitutes a real and not guilty of the acts and asked to make any changes of the lack of consistent .

Through the above reasons the German theory of the free exercise to sort out and analyze theoretical dilemma is not difficult to find liability doctrine in the implementation of the required behavior and the principle of responsibility exist and Legality Elements required for shaping the behavior of the contradiction between the principle of the Q The theory did not solve the water from the root 'theory of contradictions.

Third, because the free exercise of German criminal law to the Legislative Reference Model for China
German General Penal Code, and no reason to act mortar} {special provisions, only Article 20 and Article 21 set the plant not criminally responsible and mentally ill lead the convergence of abnormal mental capacity limitation of liability provisions to mitigate their punishment. And in criminal law in, places a special drink and other provisions of the criminal responsibility, in theory, some scholars have called the Ming Ding crime .- A general view of the reasons crime is typical for the theory of free exercise of the legislative, the kinds of Legislation called "sub-type of legislation model."
Other than the German civil law countries, is generally used, "General type of legislation model." Such as Italy, Switzerland, Japan and other countries have adopted legislation General-style model, that is drunk in the General settings remain in full on the criminal Responsibility of the legislation, making it a general exception to the provisions of criminal responsibility.

Only in this country of the Penal Code article 18 of the intoxicated person who commits a crime shall bear criminal responsibility, without regard to its convergence with other issues of criminal law theory.

Legislation for the above two, and some agreed general principles of criminal law scholars-style legislative model, advocates drug use, drug taking and other acts led to mental disorders as a cause of action, a suggestion to modify Paragraph Four of Article XVIII: "The perpetrator intended limitation of liability or fault to fall into the abilities of the state or non-duty capacity, and in this state constitutes a crime under the lead of emerging objective should be held criminally responsible. "There are criminal law scholars advocate deleting Paragraph Four of Article XVIII, set specifically provides that: "intentionally or negligently, to make themselves trapped in a state of limited or no capacity for criminal responsibility the state criminal responsibility, while the implementation of the hazard, it shall bear criminal responsibility may not be reduced or exempted from punishment." additional criminal law scholars advocate reference Testo adopt the legislative experience of sub-type legislative model, if the criminal law scholars have suggested that the cause of Liberty in the provisions of Ming Ding crimes, crimes against public security put 'chapter, the details are: "willful or negligent trapped in the no obligation ability of state capacity or limitation of liability, the implementation of the law against acts causing serious injury or death, or a large amount of public and private property losses, 3 years of imprisonment or detention: the circumstances are especially bad, at least 3 years 7 years term of imprisonment. "
I believe that only using the General-type model or the Legislative Council sub-type models are unscientific, in criminal law will cause the white South General statutory acts of positive significance, but its scope is limited. Because not all from the intentional or negligent caught committing crimes against the state of mental disorder behavior can be applied to the circumstances of the reasons for Liberty. As some scholars have said: "The reason may be fine for the free exercise is to set the stage actors interested in the reason to destroy the legal interest, or at least the foreseeable legal interests must be the possibility of damage, so in order to live a certain degree of legal interest being infringed, was placed under the responsibility of the perpetrator to cause setting. If the perpetrator in the first act, neither criminal intent nor criminal negligence, that is, without subjective invasive, it can not explain the cause of Liberty.

Therefore, because Liberty can not fully grasp the legal and drug use and after spending under anesthesia after the implementation of the offenses. "In other words, this case, the behavior of people who, though no harm results to the possibility of unforeseen or foreseen , but the loss of self-trapped state of mind the possibility foreseen or foreseeable. because the perpetrator does not have mental harm results to sin, even if the behavior of people in the mental state of the results of the implementation of harm against acts did not constitute a cause of Liberty. However, in this case they need to pursue acts of BU's Mingding responsibility. In this case, the general provisions of criminal law provisions alone can not solve.

Legislation in sub-style in the criminal law in advocating the creation of a separate charge of a Ming Ding crime. In the establishment of this charge, the author believes that this charge is not intended to be Feng cause of liberty against the legislation, it targeted should be targeted only those provisions of general principles alone can not handle the special circumstances, which play a role in reveal all the details. These special circumstances include the perpetrator's conduct did not constitute a reason for the free exercise of the responsibilities but need to be investigated for the case of Ming Ding, and the cause of freedom can not be proved act, it was the case of subjective guilt.

In summary, I believe that using a combination of general and sub-legislative model is more reasonable, is consistent with legality and the principles of crime and the most suitable option official. Reposted elsewhere in the Research Papers Download http://www.hi138. com