| Chinese criminal law scholars have some misapprehensions about the relationship between Chinese crime constitution and German-Japanese crime constitution. Actually, the basic difference between them lies in the value theory. German-Japanese three-tier criminal system bases on norm theory and appraisal concepts. The object of value appraisement is fact, its formal standard is Tatbestand and its material standard is alterable, such as Neo-Kantian transcendental reason, Roxin’s criminal policy, Jakobs’ social norm and so on. However, Chinese four-element system bases on ontology and descriptive concepts. The object of value appraisement can not be distinguished from the standard of value appraisement, and fact judgment equates to value appraisement.Ontological system and its descriptive concepts restrict the function of value appraisement. This kind of system cannot harmonize the relationship between value appraisement and fact judgment, thus induces the superabundance of fact judgment but the insufficiency of value appraisement. Accordingly, the insufficiency of value appraisement in Chinese system is complemented by the concept of social harm. Secondly, the descriptive concepts in Chinese system cannot leave enough space for theoretical development. Again, the descriptive concepts cannot describe “no”, which is the reason why Chinese crime constitution cannot contain the justifiable acts. Chinese crime constitution system should transfer from ontology to norm theory, from descriptive concepts to appraisal ones, and harmonize the relation between positive appraisement and negative appraisement. |
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