Research on Super-law Ground for Elimination of Criminality

Super-law ground for elimination of criminality refers to acts that are similar to crime in appearance and agree with individual requirements of crime constitution but not with crime constitution because of no perniciousness. Though the criminal law makes no special provision for that, these acts’criminal characteristics should be excluded.In theory, the first foundation of super-law ground for elimination of criminality is the substantial quality of illegality. Though super-law ground for elimination of criminality is similar to crime in appearance and agrees with individual requirements of crime constitution, its criminal charateristics should be excluded because of no perniciousness and no substantial quality of illegality. The second foundation is the theory of“ultima ratio of penalty”. This theory is the internal basis of super-law ground for elimination of criminality and in turns the realization of this theory in justice depends on super-law ground for elimination of criminality. The third foundation is the intrinsic reflection of the crime punishment legal principle. Deep research into the crime punishment legal principle reveals explanation technique of legalisation of decriminalization in law that means expressly stipulated in law but not necessarily illegitimate. Super-law ground for elimination of criminality does not violate regulations of the criminal law.In practice, the first foundation of super-law ground for elimination of criminality is the existance of loopholes in the criminal law. One of the loopholes is on exemption of regulation on the essence of penalty. Like self-defense and act of rescue, such acts as euthanasia, self-salvage and victim’s commitments should be definitely regulated as acts without criminality in the criminal law. With it, the people know clearly what their rights are and then can prevent law-officers from determining such acts as crime. The second foundation is the theoretical approval of the academic circle in China and practical support of precedents. From thses pracitcal point, it is shown that super-law ground for elimination of criminality is in objective existance, which provides both practical and theoretical support for the existance of super-law ground for elimination of criminality in the criminal law theories in China.On the reasonable orientation of super-law ground for elimination of criminality in criminal theory system of China, the thesis thinks that super-law ground for elimination of criminality is not in accordance with crime constitution and then it remains in the crime constitution theory.Now that super-law ground for elimination of criminality is not expressly stipulated in the criminal law, its theoretical datum and behavior system should be summed up to avoid the hazard of limitlessness of super-law ground for elimination of criminality. The thesis believes that perniciousness should be the theoretical foundation of super-law ground for elimination of criminality. On this foundation and reference to Japanese scholar’s monism, super-law ground for elimination of criminality in China can be classified into two categories. One is super-law normal acts including victim’s commitments, euthanasia, due professional conducts and acts according to law. The other is supe-law urgent acts including self-salvage and obligation conflicts.There are two stages in the realization of super-law ground for elimination of criminality in justice of China. The first one is investigation and prosecution stage. In this stage, in the sphere of equitable duscretion of investigation organ and prosecution organ, criminal procedure can be refused to start or discontinued, which makes super-law ground for elimination of criminality virtually decriminalized. The second stage is trial stage. The judge can depends both on theories of crime constitution to exclude criminalization of super-law ground for elimination of criminality and on“proviso”, the article thirteen of the criminal law, to eliminate the crimal composition with the reason that circumstances are significant but harm is not great.After analyzing the basic theories of super-law ground for elimination of criminality, the thesis chooses enthanasia, self-salvage and victim’s commitments as objects of research which are being disputed heatedly in academic circles but are with obviouse characteristics of super-law ground for elimination of criminality. The extra emphasis of this research is placed on the basis on which the criminality of these acts are excluded and objective and subjective factors that are necessarily possessed to exclude criminality.