开放的犯罪构成要件理论之提倡

Offene Tatbest nde” is a new kind of “Tatbest nde” theory in Germany and Japan. It’s the result of “nullum crimen sine lege” that changes from strict to flexible. It means when a legislator doesn’t describe all constitutions to a crime, the judges can supplement what can be proved illegality according to some value standards. What is reproduced by the new “Tatbest nde” after supplementing is the “Offene Tatbest nde”. This theory should be advocated in China, which will expand and deepen the “Tatbest nde” research and will help to change unreasonable idea about “nullum crimen sine lege”. It will play an important role in moving the main point of criminal law application from the legislative and judicial organs to judges, and will promote the reform of judicial system.