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About the Author
Zhang Mingkai, born in Xiantao, Hubei Province in July 1959, is a criminal law scientist, a master of law from Zhongnan University of Economics and Law, a visiting researcher at the University of Tokyo, a visiting professor at Tokyo Metropolitan University, and a senior visiting scholar at the University of Bonn, Germany. He is currently a senior professor and doctoral supervisor of liberal arts at Tsinghua University, and the director of the Academic Committee of Tsinghua University Law School. He is also the deputy director of the Academic Committee of the Chinese Society of Criminal Law, the vice president of the China Procuratorial Research Association, the vice president of the China Police Law Research Association, the expert advisory committee member of the Supreme People's Procuratorate, the business consulting expert of the Public Prosecution Department of the Supreme People's Procuratorate, the member of the Expert Committee on Case Guidance Work of the Supreme People's Procuratorate, the member of the Expert Committee on Case Guidance Work of the Supreme People's Court, the member of the National Steering Committee for Graduate Education in Policing Majors, and a member of the "Eighth Five-Year Plan" Law Popularization Lecturer Group. Professor Zhang Mingkai has a wealth of academic achievements and has published a number of important books. These include "The Development of Criminal Law Maxims", "Outline of Foreign Criminal Law", "Theory of Attempted Offenders", "Economic Crimes and Countermeasures under the Market Economy", "Basic Concepts of Criminal Law", "Theory of Criminal Responsibility", "Principles of Crime", "Introduction to Administrative Criminal Law", "Criminal Law", etc.
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Chapter synopsis
Chapter 8 Subjective Excess Elements and Objective Excess Elements
This chapter consists of three sections: the limits of correspondence between subjective and objective elements, subjective exceeding elements, and objective exceeding elements. Professor Zhang Mingkai introduced and elaborated on the subjective and objective superelements respectively, corrected the fallacies in theory and practice, and expounded his own views.
—, the corresponding limit of subjective elements and objective elements
Whether from the perspective of criminal law provisions or from the perspective of actual crimes, the subjective elements and the objective elements do not exactly correspond. From the perspective of criminal law norms, some subjective elements do not need to be externalized or realistic, and this kind of subjective element that does not require the existence of corresponding objective facts is called subjective super-elements. For example, the purpose of the purpose is a subjective element, but it does not need to be objectively achieved. In contrast, the establishment of a partial intentional crime does not require the perpetrator to be fully aware of all objective elements. Professor Zhang Mingkai took "relatively large amounts" and "multiple thefts" as examples, and through the discussion of "whether the perpetrator needs to realize that he has committed multiple thefts or the amount of property stolen is relatively large" in the crime of theft, he believes that the objective excess elements should also be recognized.
2. Subjective overstepping elements
The purpose of the purpose of the crime, the inner tendency of the inclination crime, the inner process of the expression crime, and the motive of the crime in the motive crime do not require the existence of objective facts corresponding to them, as long as they exist in the heart of the perpetrator. Therefore, in this part, Professor Zhang Mingkai's discussion of subjective super-elements mainly revolves around these four types of crimes.
(1) Purpose offenders
Purpose offense refers to a crime with a specific purpose as a subjective element. The specific purpose in the purpose crime does not refer to the direct intentional volitional factor, but the intrinsic intention of a certain result, benefit, state behavior, etc., in addition to the intentional cognitive factor and the volitional factor; It is a more complex and far-reaching psychological attitude than the directly intentional element of will; Nor is its content necessarily the result of conceptual harm. Regarding the purpose criminal, Professor Zhang Mingkai discussed the following aspects.
First of all, in terms of the scope of existence of the purpose crime, Professor Zhang Mingkai believes that the purpose crime can be constituted by both direct and indirect intention. He pointed out that when criminal law defined a crime as a purpose, it excluded from the crime only acts that did not have a specific purpose, not indirect intentional acts. From the perspective of psychological facts, when the results of the actor's indulgence and the goals pursued by the actor are different contents, it is entirely possible that there is no contradiction in the subjective psychology of the actor.
Secondly, Professor Zhang Mingkai mentioned that among the purposes of the crime as a subjective supersede element, the "purpose of illegal possession" in property crime is the most worthy of study. Taking the crime of theft as an example, he believes that the purpose of illegal possession is the unwritten subjective element of the crime of theft, and has the function of distinguishing between crime and non-crime, this crime and other crime. As for the meaning of the purpose of illegal possession, Professor Zhang Mingkai believes that the purpose of illegal possession refers to the meaning of excluding the right holder, disposing of the property of others as his own property, and using and disposing of it in accordance with the purpose of the property. That is, the purpose of unlawful possession consists of "intention to exclude" and "intention to exploit".
Finally, with regard to the scope of unwritten purpose crimes, Professor Zhang Mingkai believes that in the absence of explicit provisions on subjective purposes in the specific provisions of the Criminal Law, whether a certain purpose can be determined as a subjective element in the interpretation theory (including the application of the Criminal Law) needs to be specifically analyzed, and the phenomenon of unduly expanding the scope of purpose crimes in mainland criminal law theory and judicial practice also needs to be paid attention to and corrected.
(2) Tendency to offend
The so-called inclination of a crime refers to a crime in which the act must show a specific inner tendency of the perpetrator, and only when such inner inclination is discovered can the act be considered to have the constituent elements of compliance. A typical offense of inclination is the crime of indecency, that is, only when the act carried out by the perpetrator shows that the perpetrator has an inner tendency to stimulate or satisfy sexual desire, the act meets the constitutive elements of the crime of indecency and is illegal. However, whether the crime of indecency is a tendentious crime, that is, whether the establishment of the crime of indecency requires the perpetrator to have an intentional intention, and whether the perpetrator must subjectively have an inner tendency to stimulate or satisfy sexual desires, is still an issue worthy of study.
Professor Zhang Mingkai believes that the establishment of the crimes of forcible indecency, insult and child molestation does not require the perpetrator's subjective tendency or purpose to stimulate or satisfy sexual desire, for the following reasons: first, the perpetrator is not required to subjectively stimulate or satisfy sexual desire, because even if there is no such tendency, the behavior seriously violates women's right to sexual self-determination; Second, it is not required that the perpetrator subjectively has a tendency to stimulate or satisfy sexual desires, and it is completely possible to objectively distinguish whether the act is an indecent act, so it is completely possible to distinguish between crime and non-crime; Third, it is not required that the perpetrator subjectively has a tendency to stimulate or satisfy sexual desires, and the relationship between the crimes of forcible indecency, insult and insult can be reasonably handled; Fourth, it does not require that the perpetrator subjectively has a tendency to stimulate or satisfy sexual desires, which will not lead to objective imputation; Fifth, requiring the perpetrator to subjectively have a tendency to stimulate or satisfy sexual desires will lead to an undue narrowing or expansion of the scope of punishment; Sixth, requiring the perpetrator to subjectively have a tendency to stimulate or satisfy sexual desires will lead to an imbalance between the punishment of this crime and the crime of insult under Article 246 of the Criminal Law, and it is suspected of violating the principle of proportionality of crime and punishment; Seventh, requiring the perpetrator to subjectively have a tendency to stimulate or satisfy sexual desires is a manifestation of attaching importance to subjective factors and despising objective factors; Eighth, the subjective tendency of the perpetrator to stimulate or satisfy sexual desires may be derived from the induction of objective facts.
To sum up, Professor Zhang Mingkai believes that the crimes of forcible indecency, insult, and child molestation stipulated in the mainland criminal law are not intended to be committed. Failure to grasp the essence of the crime of infringement of legal interests and the essence of responsibility and arbitrarily adding subjective elements will only cause a lot of confusion.
(3) Performance offenses
"Expressive offense" refers to a crime in which the conduct reflects the internal or psychological process or state of the perpetrator; In determining this kind of crime, it is necessary to compare the external facts with the subjective mental process of the perpetrator, otherwise it is impossible to judge the compliance of the constituent elements and the illegality. The crime of perjury is considered to be a proper example of a performance crime, but Professor Zhang Mingkai believes that the crime of perjury is not a performance crime; Other crimes in which misrepresentation is a constitutive element are not performance crimes, and there is no need for the concept of performance crimes.
(4) Motive offenders
Motive (criminal motive) refers to the inner cause or thought activity that stimulates and prompts the offender to commit the criminal act, and it answers the psychological reason on which the offender commits the criminal act, so the role of motive is to initiate the criminal act and explain what significance the commission of the criminal act has to the psychological desire of the perpetrator. Motive has two main functions: first, a specific motive is the subjective element of a partial crime. Second, the content of the motive affects sentencing.
1. Favoritism
There are different views on the nature of favoritism. Professor Zhang Mingkai believes that favoritism is a criminal motive. Proceeding from the provisions of the Criminal Law on the crime of dereliction of duty, he held that the provisions of the Criminal Law require that some of the crimes of dereliction of duty be motivated by favoritism, in order to exclude from the crime of dereliction of duty the situation of errors caused by the lack of legal quality, policy level, and technical ability. Therefore, interpreting favoritism as the motive for committing a crime is more in line with the provisions of the criminal law and the actual situation.
At the same time, Professor Zhang Mingkai pointed out that in judicial practice, there is a phenomenon of arbitrarily asking for favoritism for job-related crimes. In judicial practice, it is often difficult to identify a state functionary who abuses his power to commit the crime of illegal detention, such as extended detention, if it is not motivated by some despicable personal motive. For a long time, mainland criminal law has failed to pursue criminal liability for extended detention; This, in turn, has become the cause of the serious phenomenon of extended detention, creating a vicious circle. In his view, according to the purpose of the criminal law and the constitutive elements of the crime of illegal detention, the act of prolonging detention for the purpose of fighting crime is also a crime. The so-called "public interest" motive cannot make the legal interests of the act less infringing, nor can it lead to the lack of responsibility for the crime of unlawful detention.
In the absence of a criminal law stipulating that motive is a subjective element of the crime, the content of the motive does not affect the nature and degree of infringement of legal interests by the act, nor does it lead to a lack of responsibility, so it does not affect the conviction; Even the motive of "kindness" and the motive of "altruism" are no exception.
2. Hooligan motives
This section deals primarily with hooliganism motives in the crime of picking quarrels and provoking trouble. Since the crime of picking quarrels and provoking troubles is decomposed from the crime of hooliganism, on the one hand, the current judicial interpretations continue to stipulate "hooliganism" as a subjective element of the crime of picking quarrels and provoking troubles. On the other hand, criminal law theory still regards "hooliganism" as a subjective element of the crime of picking quarrels and provoking trouble. However, Professor Zhang Mingkai believes that the establishment of the crime of picking quarrels and provoking troubles does not require the perpetrator to be subjectively motivated by hooliganism.
First, the so-called "seeking excitement, venting emotions, acting recklessly, etc.", that is, "hooliganism" is a state of mind that has no specific meaning and is difficult to be recognized, and has inexplicable and unclear content, and it is regarded as a subjective element of the crime of picking quarrels and provoking troubles, and does not have the significance of limiting the scope of the crime.
Second, it is considered that "hooliganism" is not a subjective element of picking quarrels and provoking troubles, because even acts without such hooligan motives may seriously infringe on the protective legal interests of the crime of picking quarrels and provoking troubles.
Third, not taking hooliganism's motive as a subjective element of the crime of picking quarrels and provoking troubles can also objectively distinguish whether or not an act of picking quarrels and provoking troubles is completely possible, so it is completely possible to distinguish between crimes and non-crimes, and between this crime and other crimes.
Fourth, not requiring the perpetrator to be subjectively motivated by hooliganism does not mean that the perpetrator is not required to be subjectively intentional, and thus does not lead to objective imputation.
Fifth, the requirement that the perpetrator is subjectively motivated by hooliganism has led to the failure to reach a proper conclusion in some specific cases.
Second, the objective exceeds the elements
Objective transcendence is a concept proposed by Professor Zhang Mingkai. In his view, the doctrine of responsibility did not mean that the perpetrator of an intentional crime must be aware of all objective elements. In fact, there are objective elements that do not require the perpetrator to know, i.e., some objective elements may not require the existence of a corresponding subjective content. For example, although "causing serious consequences" in the crime of losing a firearm and not reporting it is an element of the constitutive element, it does not require the perpetrator to have an awareness and hope for the serious consequences or a laissez-faire attitude. Therefore, "causing serious consequences" becomes an objective element that goes beyond the intentional content and belongs to the objective excess element.
Regarding the objective transcendence elements, Professor Zhang Mingkai answered some questions and criticisms that may arise and have arisen.
First, does the recognition of objective super-elements violate the doctrine of responsibility? Professor Zhang Mingkai believes that the principle of responsibility must be implemented, and consequential responsibility or accidental liability should be abolished. However, the recognition of objective superseparities does not amount to asserting responsibility for results. The criminal law stipulates that crimes of negligence do not violate the doctrine of responsibility, and that the perpetrator is required to have a possibility of foreseeing the harmful consequences that are objectively exceeding the elements, and there is no reason to think that the recognition of objective excess elements is an expression of consequential responsibility in relation to the lower statutory penalties for these crimes.
Secondly, since the perpetrator is required to have a foreseeable possibility of the objective excess of the elements, why not directly affirm that these crimes are crimes of negligence? Professor Zhang Mingkai believes that it is not appropriate to identify all crimes that need to be dealt with with by the objective concept of exceeding the elements as crimes of negligence, because this will lead to the perpetrator not having to have intent on all the constituent elements. Since a certain negligent act is a crime, the corresponding intentional act should be a crime. However, it is highly inappropriate to interpret these crimes as crimes of negligence, where there is no corresponding intentional crime.
Third, Professor Zhang Mingkai refuted the practice of criticizing the concept of "objective super-elements" from the perspective of legislative theory.
Fourth, does the recognition of objective super-elements lead to the so-called intentional and negligent consequences of the act? Professor Zhang Mingkai does not agree with the view that intentionality and negligence should be distinguished only based on the understanding of behavior and volitional attitude and only based on the understanding of the result and volitional attitude, and has always advocated a complete understanding of intentionality and negligence.
Fifth, does the recognition of objective excesses contradict the requirement that the aggravating consequences have a foreseeable possibility of the aggravating outcome? The answer is no, on the contrary, Professor Zhang Mingkai advocates the above view through the mediation of the concept of aggravated consequences in this book. However, according to the principle of responsibility, the perpetrator must have the possibility of foreseeing the aggravating result, otherwise he will not be liable for the aggravating result, and in the crime he advocates that requires the use of the objective concept of exceeding the elements, the perpetrator is also required to have the possibility of foreseeing the harmful result as an objective exceeding the element, which is consistent with the requirement that the aggravating result require the possibility of foreseeing the aggravating result.
Sixth, how to determine the objective excess factor? Professor Zhang Mingkai summarized this: (1) that is, the objective element must have the nature of limiting the scope of punishment; (2) the objective element is not the only constituent element among the constituent elements, but one of many elements; (3) If the harmful result of a crime is determined to be an objective exceeding element, the statutory penalty for that crime must be lower and significantly lighter than that for a crime with intentional psychology about the harmful result; (4) When the objective element is determined to be an objective exceeding element, it does not affect the complete content of the actor's subjective intent; (5) The content and scope of objective exceedances should be determined with extreme caution in order to prevent objective imputation.
Seventh, as an objective harmful result that exceeds the elements, it can be roughly divided into three types: First, the harmful result cannot be directly and objectively attributed to the perpetrator's conduct, but the sub-provisions take the occurrence of the harmful result as a condition for limiting the scope of punishment. Second, the harmful result can be objectively attributed to the perpetrator's conduct, but the sub-provisions regard the occurrence of the harmful result as an objective element of the crime (1). Third, the harmful result can be directly and objectively attributed to the perpetrator's conduct, and the sub-provisions make the occurrence of the harmful result a condition for the statutory sentence to be upgraded.
Eighth, the concept of objective exceedance is based on the concept of objective punishment conditions and the subjective concept of exceedance, therefore, the objective exceedance of the element cannot be limited to the harmful result, in fact, the harmful result should be limited as far as possible as an objective excess factor.
Ninth, Professor Zhang Mingkai also acknowledges the two concepts of objective exceedance elements and objective punishment conditions.
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Reading insights
The unity of subjectivity and objectivity is a basic concept and principle of mainland criminal law. Under the principle of unity of subjectivity and objectivity, the establishment of a crime not only requires the possession of subjective and objective elements, but also requires that there are mutual connections and constraints between the subjective and objective elements. However, due to legislative technical reasons, the subjective and objective elements of some crimes in the actual criminal law norms do not correspond one-to-one.
The kind of subjective element that does not require the existence of an objective fact corresponding to it is called a subjective superelement. In this book, Professor Zhang Mingkai explains the purpose crime, the expression crime, the tendency crime, and the motive crime according to the different manifestations of subjective super-elements in crimes. Among them, the explanation of the purpose offender is particularly detailed, from the concept and scope of the purpose offender to the controversial and worthy of study of the purpose of illegal possession and its specific content. When discussing whether the purpose of the crime can be constituted by indirect intention, Professor Zhang Mingkai pointed out that people are prone to fall into the mistake of habitual thinking when thinking about problems, "based on some facts held or speculated by the interpreter himself", and "confusing facts and norms" way of thinking makes people often make mistakes. When explaining the meaning of exclusion and exploitation in the purpose of illegal possession, Professor Zhang Mingkai introduced the different views of many scholars at home and abroad, and gave sufficient reasons for the views that he agreed with or opposed, so that readers can better understand the content of this book on the basis of fully understanding the research status of relevant issues in the theoretical community. This section also lists a large number of cases, through the analysis of various specific situations, to show the advantages and disadvantages of different points of view, and to seek the best understanding of the constituent elements of the crime in the specific facts of the case. The editor believes that the writing techniques and ways of thinking about problems shown in this book are worth learning from.
Objective excess element is a concept created by Professor Zhang Mingkai, in this part he first described his own thinking process of this concept, mentioning that the subjective excess element and objective punishment conditions provide enlightenment for the generation of objective excess elements. Professor Zhang Mingkai made a relatively complete exposition of the objective exceedance elements from the aspects of the concept, the distinction between the objective exceedance elements and the objective punishment conditions, and the response to the challenge. The editor also agrees with the concept of objective transcendence. On the one hand, the problems in the determination of crimes such as the crime of not reporting the loss of a firearm and the crime of abuse of power in mainland judicial practice show that there is an objective soil for survival that exceeds the elements. Taking the crime of losing a firearm as an example, it is indeed difficult to locate the form of subjective guilt by intentionality or negligence. As Professor Zhang Mingkai said in his book, there are also cases where a firearm is lost without negligence, and the objective exceedance theory can more reasonably solve this problem by identifying this element as an objective exceedance element that does not require the perpetrator to have subjective guilt. On the other hand, from the question "How to determine the objective excess factor?" In the answer to this question, it can be seen that Professor Zhang Mingkai has adopted a very cautious attitude towards the determination of objective exceeding the elements, requiring the perpetrator to have the possibility of foreseeing the harmful results that objectively exceed the elements, and strictly restricting the scope of its application, preventing objective imputation, and the operating logic of the concept itself is rigorous.
Through the study of this chapter, we have gained a lot. On the one hand, we have developed a deep understanding of the subjective super-elements and the objective super-elements. On the other hand, we can also learn Professor Zhang Mingkai's skills in writing and logical thinking. More importantly, Professor Zhang Mingkai's vision of discovering problems and his many views on criminal law theory may bring us some new inspiration.
Producer: Zhang Yongjiang
Author: Zhang Xiaomin, 2023 master's student in criminal law, Xiangtan University Law School
Editor: Ge Ronggang
Editor-in-charge: Cao Enni
Review: Wang Kui
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