Abstract

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Keywords:: illegality identity; (constitutive)accountability identity; system of criminal theory; theory of substantive objectivity

Abstract:: Objectivity is the essential connotation of identity in criminal law, which partly recognizes the element of subjective identity according to the necessity of penalty. Identity in criminal law consists of constitutive identity and accountability identity. The system of criminal theory is related to the nature of identity, and the three-tier system of Tatbestand serves as the theoretical basis of constitutive identity. Identity is possessed by the actor, who is also a constitutive element of crime. The constitutive elements of crime define the illegality of a crime, and thus the element of the actor’s identity should include two aspects: illegal action and capacity of accountability. The nature of the constitutive element of identity lies in its danger of infringing others’ legal interests. Although the identity cannot be the object of accountability because of its contradiction to the essence of accountability, theoretically accountability identity is a false concept. So identity as a constitutive element can be nothing but a cause for unlawfulness. Accountability identity, however, plays an important role in determining penalty. It belongs to circumstances for sentencing, and the aim of penalty accounts for its existence. Thus, identity in criminal law is composed of illegality identity(i.e. identity leading to illegality)and accountability identity.