论文标题:罪刑法定原则下的犯罪构成
A Comparative Study between Chinese and Korean Legal Systems of Foreign Direct Investment
论文作者 沈琪
论文导师 马登民,论文学位 硕士,论文专业 刑法学
论文单位 中国政法大学,点击次数 205,论文页数 41页File Size361k
2003-05-01论文网 http://www.lw23.com/lunwen_7864317/ 古典罪刑法定原则;现代罪刑法定原则;犯罪构成;犯罪构成的功能;犯罪构成的体系
Stakeholders;Corporate governance;Co-governance;Law System
本文初步探讨了罪刑法定原则视野中的犯罪构成这个重大的刑法理论问题。罪刑法定原则是刑法的基本原则，它经历从古典到现代的发展过程。无论是古典的罪刑法定原则还是现代的罪刑法定原则，在价值取向上都是出于对自由与人权的追求。所不同的是，现代罪刑法定原则对刑事立法权采取更加警惕的态度，希冀通过对刑罚权的全面制约来实现其保障人权的价值蕴涵，它不仅要制约司法权，更要制约立法权。然而，罪刑法定原则毕竟只是一项原则，它本身属于形而上学的观念世界，要从观念世界走向经验世界，它必须借助于犯罪构成这个具体机制。从犯罪构成的产生时起，它就肩负起了实现罪刑法定原则的宗旨的历史使命。现代的犯罪构成也应发挥对司法权和立法权双重制约的功能。当然，并不是任何形式的犯罪构成都能发挥其应有的功能，犯罪构成体系的不同决定其功能的不同，犯罪构成体系上的构建缺陷也会造成其功能上的缺失。犯罪构成是目前国内刑法学界讨论的热点问题之一，除基本构成要件、犯罪构成的性质等问题的讨论外，犯罪构成的体系性重构问题格外引人注目。本文从罪刑法定原则的角度出发，比较分析了国外犯罪构成体系对实现罪行法定原则的意义，并对我国犯罪构成的重构提出了一些很不成熟的建议。
By Lim Hoon- KiDirector: Xu JieDepartment of Economic LawThe Graduate School of China University of Political Science & LawDirect investment by foreign investors takes an important position in the development of domestic economy both in China and in Korea. In recent years, the direct investment between the two countries has grown very fast. However, there are still many differences between the two countries in the basic legal system and specific systems in direct investment by foreign investors. This paper is to make a comparative study on the legal systems of China and Korea in direct foreign investment on such a basis. The article is divided into six chapters besides the preface and the conclusion. Chapter One - Introduction; Chapter Two - Legislation and Policy of Direct Foreign Investment of China and Korea; Chapter Three - Legal Protection of Direct Foreign Investment; Chapter Four - Comparison between China and Korea in the Establishment of Foreign Investing Enterprises; Chapter Five - Comparison between China and Korea in the System of Capital Management of Enterprises with Foreign Capital; Chapter Six - Comparison between China and Korea in Preferential Legal System.Chapter one offers a detailed picture of the status quo of direct foreign investment in China and Korea, laying a foundation for further discussion in the article. Chapter one also states some motives and significance for writing this article，highlighting the feasibility and necessity to study the legal systems of China and Korea in direct foreign investment in the background of economic integration of the world and enhancement of regional cooperation, and explaining the method of study and the basic studying program.Chapter two introduces and analyzes the formation and development of the theory of direct foreign investment, and introduces the different understandings of the USA, Japan, China and Korea regarding the system of direct foreign investment, on the foundation of adequate comparison between micro theory and macro theory. It probes into the systematic motives and prospects in the formation and development of direct foreign investment system.Chapter three - Legislation and Policy of Direct Foreign Investment of China and Korea. It details and analyzes the changing process of legislation and policies of direct investment of China and Korea, and introduces the characteristics of the legal systems of direct foreign investment of the two countries. And, on that foundation, it compares the different understandings of the two countries regarding the system of direct foreign investment, arising from the different system backgrounds and different developing stages of the two countries.Chapter Four - Comparison between China and Korea in the Establishment of Foreign Investing Enterprises. The purpose of this chapter is to analyze the effects of different legal systems on direct foreign investment through comparison between specific systems. Thus, it makes a detailed comparison between China and Korea in their different legal norms concerning establishment of enterprises of foreign investment, including the scope of direct foreign investment (prohibitions and restrictions), the system cost in the establishing process, the approving systems and the registration systems.Chapter Five - Comparison between China and Korea in the System of Capital Management of Enterprises with Foreign Capital. The system of capital management of the enterprise is not only the core of the finance of the enterprise, but also very significant to the development of the company and the protection of the obligee. After stating the great importance of the capital of the company to the foreign funded enterprise, this chapter analyzes the different points of Chinese and Korean foreign-funded enterprises in their system of capital management, such as the objectives of contributions, the ratio of contributions, the performance of the investment and the change of the capital, etc., hoping to arouse the attention of the legislators of both countr
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