| The Chinese criminal law is characteristic in that a great deal of offenses should amount to a certain seriousness demonstrated in certain circumstances prescribed by the penal law or its judicial interpretation in order to be regarded as a crime. How to define the requirement of serious circumstances in the so-called circumstance-delikts within the framework of crime constitution has been one of the theoretical difficulties in Chinese criminal law. Inspired by the quantitative analysis of the unlawfulness in German criminal law theory which allows a gradual variation of unlawfulness, the author finds that the crime constitution is the integrity of quality and quantity. Its quality is the punishable negative "thing" and varies within a certain limit. Thus an artificial separation of the quantity from its quality in dealing with circumstance-delikts as argued by some Chinese scholars can not be accepted.Based on this conclusion, the author constructs a theoretical analyzing tool, namely "the basic quantity range of unlawfulness" due to the basic idea that a certain crime as an unlawfulness type contains always a certain quantity of unlawfulness, to analyze the position of the circumstance requirements in circumstance-delikts. Using this tool, we manage to find that a majority of the circumstance requirements in circumstance-delikts in Chinese criminal law are covered by the basic quantity range of unlawfulness of these delikts and therefore are constitutive elements of them and can be regarded dogmatically as the "general normative evaluating elements". Consequently, the objective part of the "general normative evaluating elements" should be included in the intention in the case of intentional crimes, which means that the offender should know the factual foundation of serious circumstances in order to establish the crime. However, due to their normative evaluating nature, it is not necessary for the offender to understand the precise legal meaning of circumstance requirements. As to the other circumstance requirements in circumstance-delikts beyond the basic quantity range of unlawfulness of the related crime, it is possible for their orientation in the crime constitution only by specific dogmatic analysis. Some of circumstance requirements are actually aggravated results in the meaning of aggravated crimes, while some other can be treated as the objective prerequisite of punishment. And still others are factors of criminal policy and do not belong to the crime constitution any more. |
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