Abstract

Objective punishment conditions are special legislations in continental law areas such as Japan, Germen and Taiwan of China. As for the legal nature of objective punishment conditions, the scholars of German, Japan and Taiwan of China have their views apparently differed from each other. In German, objective punishment conditions refer to some criminal act features as the prerequisite of crime punishment but do not belong to criminal constitutive requirements. The objective punishment conditions are excluded from criminal constitutive requirements in the consideration of criminal policy, independent to criminal constitutive requirements, so they are not the content that should be recognized by intention, but they are still categorized into criminal theories. In Japan, in order to ensure the internal purity of criminal constitutive requirement system, the coordination of crime theory system and the implementation of the liability principle, most scholars believe that objective punishment conditions are in the category of penalties and do not belong to the realm of crime requirements, just one of the terms that trigger punishment as the exception for the country to punish.

As for its nature and positioning, this dissertation argues that, objective punishment conditions can be divided into two types: pure objective punishment conditions and non-pure punishment conditions according to its association with the illegality and whether it can provide substantive illegality. The former one, especially designed by lawmakers for the judicial workers as the conditions for the launch of punishment, is a referee norm, having nothing to do with re sponsibility doctrine, not requiring the subjective recognition. While the later one has its substantial impact on the constitution of crime, and can be categorized as the stereotype elements, elements of illegality and even elements of responsibility. These ones require the subjective recognition, in accordance with the principle of liability, thus are the content of criminal intent. But unlike the general type of illegal elements, these ones do not require the will factor. Objective punishment conditions have the legislative and judicial functions, not only are the reflection of the criminal policy, the insurance of the unity of the legal order, but also the effective way to control the scope of crime constitution and the launch of criminal punishment.

In China's criminal law, there only exists one type of objective punishment conditions which affect the right to launch penalties, and has no place for the other type which concern with the crime constitution. This type actually is called the objective exceeding factors which require the subjective recognition but the will factor, thus distinguished from the ordinary objective elements. Therefore, the crime amount factors in the criminal law are actually objective exceeding factors rather than objective punishment conditions.

Key Words: Objective punishment conditions; Crime theory system;Objective exceeding factors.