중.일 犯罪故意論의 비교법적 고찰

Abstract

This writing explains the definition, essence of mens rea, compositional factor, classes, systematical position in crime theory, and role about general idea of mens rea in criminal law of China and Japan in order to consider comparatively about mens rea theory of them. And it compares to get the points of sameness and differences in mens rea theory of both countries. In Chinese criminal law, the definition of crime and mens rea applies on it as "Social Hazard" that could be real standard of judgement. So criminal law theory in China describes the idea of crime and mens rea in substance. Also in "Crime Composition Theory" as crime systematical theory, objective four condition (Object Condition -> Objective Condition -> Subject Condition -> Subjective Condition) are common. So the mens rea is only one of the factor in subjective condition. Normally the four conditions social hazard that is basic characteristics of crime. So it is called substantial crime systematical theory. However in case of Japan, the idea of mens rea is defined formally in crime law and theory. Also the crime system consists of three stage that are formal condition such as relevance, illegality, and responsibility. It is common that mens rea is a factor of responsiblity that is indispensable for possibility of Consciousness of Ilegality(It is called limitable mens rea theory) as well as a conditional factor that has double position and function(Theory of dual function of mens rea). Therefore, formal crime theory and modern crime systematical theory are used normally than substantial crime theory and other crime systematical theory. The author insists in the conclusion that for realization of “Grundsatz Nulla Poena Sine Lege“ in crime law in China, they need to give up substantial idea of crime and mens rea and crime systematical theory and bring in formal crime theory and mens rea theory of Japan as Relation Theory.