Distinguish between continuous criminal crime and continue to make

Authors: Lu Tieliang China legal news network 2011-8-9

　　Case:
One, the unemployed youth because Lee lazy, and want to spend the money. One day the see a daughter walking alone in the remote alley, then knife came to rob. The grab a mobile phone and a handful of cash and female bank cards in the body of the woman. Because of less cash, ATM man and woman went to the bank to withdraw money into. The process takes the money in and women, Lee was arrested. 　　
Two, a man sun all day idle about, robbery and the village man surnamed Wang. One night, they a solicitation of the three wheeled motorcycle in the county hired to remote places, robbed the owner. Two then, to devour the county recreation. Two people to play after the end, on the way home, when home alone young Zhang, and he robbed Zhang property. 　　
Ask, the above two cases of the criminal suspect in the crime? 　　
Analysis.
The suspect of crime in the state of the above two cases were continuous offence and continue to make, I will distinguish the concrete analysis of the two:
Continue to make, a crime is to state the crime in a certain period of time. Continue to make lies in the nature of the crime, which is one of behavior within a certain period of time in the implementation process. 　　
Continue to make elements: (1) crime must be a criminal intent to implement a harmful act crime based on continuing. The so-called a harmful act, refers to the subjective for an intentional crime, a crime in order to complete the same criminal intent to implement. (2) continue to make is the continuing violation of the same or similar object of crime. (3) continue to commit crime arising from its illegal status at the same time in the process of crime. (4) committed to continuing for a certain time or a certain time for the establishment of conditions to continue. 　　
Continuous crime, refers to the act of a number of the same crime intentionally based on continuous implementation, several properties of the same crime, crime violated the same criminal. 　　
The basic elements of continuous offence is:
1, continuous offence must be based on the continuous intention under the domination of a number of the same crime intention. A number of criminals intent must be the same, but must be the same, belongs to the criminal law provisions with a deliberate crime. The number of criminal behavior properties of the same intention, subjective intention must be due to the continuous implementation of a crime. 　　
The relatively independent crime number of hazards 2, conduct human behavior must be able to form a plurality of the provisions of the criminal law. 　　
3, continuous offence between several criminal acts must have continuity. Determining whether has the continuity between the number of crimes, should adhere to the basic principles of criminal law the subjective and objective unity. 　　
4 legal characteristics. For committing several crimes carried out must be violated the same charges. 　　
Continued offence and the principle of punishment:
To continue to make the setting unit independent crime, ancient to continue to make a crime according to criminal law, not a combined punishment for several crimes. 　　
On offense, China's general use from a felony principle. That is in accordance with the charges against acts of severer punishment. 　　
Understanding the continued offence and continuous offence should pay attention to the problem:
To continue to make the understanding should note the time continuous understanding: continue to make the time duration, usually can be divided as established continue to make the necessary element of time continuity and as continue to make regular feature for sustainability. Continue to make time durability, performance for the basic structure of time and is often accompanied by the existence of a heavier punishment or aggravated constitution of uninterrupted time. 　　
Continuous intention should pay attention to the problem of continuous offence crime of understanding: continuous intention, refers to the act of carrying out a series of crimes in the begin, the continuity of the understanding of crime number properties of the forthcoming implementation of the same, and based on this kind of understanding to the pursuit of a number of relatively independent of the continuous state of actual crime mental attitude. Continuous intention is to decide whether to set up one of the elements of continuous offence. The behavior of human continuous crime behavior and various intentions established specific implementation of intentional crime, with a specific crime in the criminal law should belong to the constitutive elements. Continuous intention must be formed in a series of a continuous state before the implementation of crime, and before the end of all continuous crime always play a dominant role.

Continuous offence on several controversial issues
Xiao Benshan

    Abstract:The essence of continuous offence should be the same crimes, the punishment principle should be punished severely or aggravated punishment. If continuous crime is crime of amount, should the cumulative amount of punishment, apply the basic crime shall be given a heavier punishment or aggravated punishment; if the continuous offence as non crime of amount, the legislative body is two kinds of circumstances, namely "many crimes" and "serious", some of them belong to the basic plot made, some belong to the crime with aggravated circumstances. Only aggravated offense by circumstances to make category, should be aggravated punishment. Therefore, our country criminal law legislation defects, reconstruction.
    Key word:The principle of continuous offence essence penalty legislation   
   Concept of our country criminal law had not stipulated continuous offence in our criminal law theory, but the long term is the acknowledgement of continuous offence, and studied the concept, the constitution of crime and the punishment of continuous principle. From the point of legislation, the provisions of some concrete crimes in our criminal law, especially the "multiple crime" and "the cumulative amount" legislation, embodies the continuous offender. However, for the continuous offence, in our country there are still theoretical inconsistency, legislative content not clear problem, these are due to the lack of a correct understanding of the essence of continuous offence. So, what is the nature of the continuous offence, on this basis should be continuous offence determining what punishment principle, as well as our country issues related legislation is reasonable analysis and discussion.
    A continuous offence, explore the nature of
   The so-called continuous crime, refers to the act of a number of the same crime intentionally based on continuous implementation, several properties of the same crime, crime violated the same criminal. But what is the essence of continuous offence, there are different understanding of criminal law theory. There are mainly a crime, crime number theory don't generally. In fact, a crime in addition to individual scholars will be continuous behavior as the odd behavior in criminal law, [1 ] so that continuous offence belongs to one crime in nature, the other of them are acknowledgement of continuous offence is the number of crime or several times in accordance with the basic premise of this crime, such as a crime, a crime that broken etc. point of view. A crime is committed to continuous said will include a crime. As some scholars believe that the (homogeneous) comprises a crime, refers to the behavior of shape while it several times with the same composition elements, but in the elements of evaluation is included as a constituent elements of a compliance. [2] " cover for committing acts, criminal acts the most independent, because only for single was determined, and the crimes of the same, including the theory of law as a crime." [3 ] off a sin said that continuous offence to break a crime. As some scholars believe, breaking a crime, is refers to the original is in line with the crime constitutions of crimes, but because of the inhere characteristics, processing as the form of a crime, such as implicated crime, continuous crime, crime. [4 ] also the scholar thinks, breaking a crime, including continuous crime, implicated offense and absorbable offense, is originally should be the number crime, only as a crime. In the sentence. [5] of crime number theory advocates continuous crime belongs to the crime, but the specific views are not consistent. As some scholars believe that the continuous crime belongs to the atypical crimes. [6] some scholars claim that continuous crime should be defined for the same crimes, such as some scholars think that the continuous crime in essence is a kind of homogeneous number crime, should be in accordance with the same crimes be punished. [7] some scholars will continuously make qualitative for plural crimes of the same kind of continuous. [8]
   We agree with the number of crimes in the same crimes point of view, the essence of continuous offence is the number of crimes, and is the same number of sin. In determining the crime number standard, although there are different theories, but the standard of criminal constitution is the theory of our criminal law say, that conform to the crime constitution is the behavior of crime, we should according to the constitutive elements of crime with frequency to determine the crime. Act in accordance with a crime, a crime, act in accordance with a number of crime constitution, set up several crimes. [9 ] that is to say, every behavior person a mean activity based on the performance of an independent responsibility behavior once in specific criminal facts, the law established a crime, and several times in the same circumstances, in particular constitute crime, namely crime. [10 ] due to the standards constitutes a crime that adhere to the principle of unity of subjective and objective, and implement the theory of constitution of crime in the judgment of crime number, and also implement the principle of legality. [11] in continuous offence essence, namely crime nature of continuous offence is a crime or several crimes, we also adhere to the standard of criminal constitution says. By the crime constitution standards, the essence of continuous offence is the same crimes, that is to say, human behavior for a number of the implementation of the act, individually, each of its activities in line with the constitution of the crime. As a scholar, said " repeatedly committed by the same or similar practices, and violated the same charges and the establishment, so its behavior, in nature can be independent of a crime, in other words, continuous several behavior is a plurality of independent crime behavior." [ 12] from this point of view, continuous offence is a unity of a crime and the same charges. Shen Yanzhi, one of the number, from the constitution of crime, continuous crime is a crime. We can know from the two aspects: on the one hand, continuous crime subjective need to act with a plurality of criminal intent, only with continuous criminal intent. However, the understanding of intention should be expanded continuously, , 3 can be a human behavior at the beginning of the implementation of behavior with the same series of specific criminal intent, can also be a behavior to continue to implement the same after the formation of a specific crime. Because if the continuous intention in the narrow sense, the behavior of people follow the intentional crime out of the continuous offence, which will limit the scope of continuous offence. On the other hand, the establishment of the objective of continuous offence requires multiple implementation act against the interests or dangerous crime. Secondly, from the nature of crime, continuous crime charges are the same. In 4 the constitution of a crime, the same crime is determined by the number of crimes of the same sex. The so-called continuity of continuous offence continuous behavior or behavior, refers to the behavior of people for a number of the implementation of specific elements of crime behavior, and several pieces of the same composition. "Feature in the constitution of crime, continuous crime in full compliance with the constitutions of crimes, but is in line with the number of the same crime crime constitution." [13 ] therefore, the number of crimes of continuous offence is actually the number crime form, rather than a substantive offense. Because the substantive offense, refers to the properties of a crime behavior's structure, namely the several dissimilar crimes. We say continuous crime is crime forms, is because of the nature of crimes, continuous implementation behavior formation of man is the same. Specifically, the subjective intention of hand of continuous offence is a deliberate crime. The so-called with a deliberate crime, refers to have several independent criminal behavior of concrete criminal intent, and several specific criminal intent has deliberately the same content. As some scholars have said, "composed of continuous offence has two elements: (1) one implementing a plurality of crime; (2 based on the same). The last factor is the key to repeatedly violate the law provisions of the act is continuous, without this factor, multiple crimes could not form a continuous offence, and belongs to the concurrence of crime substantive." The criminal nature [14 ] the other hand behavior implemented many times are the same, nature is the continuous crime infringed the legal interests are the same. However, the nature of our continuous offence in understanding, should correctly grasp the "boundary problem of a crime" and "in charge" theory. We think, "a crime theory" does not mean "to a crime". Because the types of crime are representative of the crime, as long as multiple crimes belong to the same type, should be given the same charges. Therefore, the amount of crime of single complex and not necessarily related. [ 15] therefore, as the number of crimes of continuous offence, "is not a crime". For the same crime refers to the crime form several independent criminal acts belong to the same charge, as the same crimes committed in continuous, specific punishment should be "a crime to punish", which has been clearly stipulated in the criminal law. The so-called "one crime", although there is controversy in theory, many researchers believe that "shall mean the same as the important conditions constituting a crime". [16 ] of course, selective charges prescribed in the special provisions of criminal law is the nature of the same crime, belonging to the same category. [17] in addition, we made continuous relationship with the same crimes, the theory also have different views, such as some scholars think that the same crimes not continuous offence. Because of several crimes of the same kind as multiple acts crime and their respective without continuity. In the pattern of crime number theory, same crimes committed and continuous exists obvious difference. Homogeneous number crime belongs to the category of crime number, and continuous offence usually belong to the broken position of a crime. [18 ] some scholars think, continuous crime in essence is a kind of homogeneous number crime, should be in accordance with the same crimes be punished. [19] scholars made continuous relationship with the same crimes in the discussion, the same crimes is divided into plural crimes of the same kind of continuous and non continuous that same crimes, juxtaposed with the continuous offence should be non continuous offence. [20] we think ", homogeneous number crime is not continuous offence" does not mean the continuous offence is not homogeneous number crime, continuous crime and several crimes of the same kind does exist difference, the difference between both is the phenomenon and essence. We agree with the two view, that the nature of continuous offence should be the same crimes. ○ 5
    Two, continuous offence punishment principle
   Because of the different understanding of the nature of continuous offence, scholars have put forward different views on the punishment principle of continuous offence, such as (a crime shall be given a heavier punishment, [21]) said (a crime shall be given a heavier punishment or aggravated punishment) said, [22] shall be given a heavier punishment or apply the statutory sentence said [23] and for [24. Therefore, the correct understanding of the essence of continuous offence, is of great significance to reasonably determine the punishment principle of continuous offence. Due to the nature of continuous offence is the same crimes, therefore, on a number of crime of continuous offence, for continuous offense, not only (a crime shall be given a heavier punishment). On the one hand, for continuous offence "according to a crime shall be given a heavier punishment", does not accurately reflect the essence of continuous offence, which did not really realize the principle of suiting punishment requirements. Because, one from the essential characteristics of continuous offence, continuous implementation of several crimes, regardless of the social harm of crime and subjective malignant, can not be the crime of the basic crime and legal punishment contained. In other words, the continuous implementation of several crimes, have gone beyond the basic criminal conviction and punishment range, if still adopt the "severe punishment", the social harm degree and behavior people neither continuous implementation reflects the behavior of several crime subjective malignant, but also against the crime to adapt to the requirements of the essence of principle. The second "shall be given a heavier punishment" is not fully reflect the actual situation of continuous offence. Because from the point of legislation, continuous crime in our country legislation manifests for the crime of amount and non crime of amount. On the amount committed, the cumulative results behavior for several implementation of the crime amount, not necessarily within the basic crime punishment range. If the crime of continuous offence as the form is applicable to the amount, the basic crime "shall be given a heavier punishment", then, for beyond the basic crime punishment scope amount, is actually a felony qingpan, this is clearly contrary to the principle of suiting punishment to crime requirements. The non crime of amount, the crime behavior of continuous implementation, are not included in the basic crime punishment range, but with the aggravating circumstances appear committed form. Therefore, for the continuous offence, whether its performance for the amount of crime or non crime of amount, can not only apply to "severe punishment", but should distinguish applicable shall be given a heavier punishment or aggravated punishment. On the other hand, the continuous offence according to a crime shall be given a heavier punishment, also do not accord with the principle of litigation economy. Because from the actual situation of Judicial Watch ", according to a crime shall be given a heavier punishment" does not reduce the procuratorial organs or judicial organs work. Because the prosecution in the prosecution, still be continuous behavior on the behavior of people one by one listed, and the burden of proof; for the judicial organs, must also be continuous behavior of human behavior that one by one, and one by one to be listed in the judgement. The same is for committing crimes, for the continuous offense, can not apply the principle of combined punishment for several crimes. ○ 6 because in theory, most scholars point of view, the combined punishment for several crimes apply only to the substantive offense. At the same time, from the legislation, although the nature of the punishment of "crime" in criminal law in our country has not been clearly defined, which refers only to the several dissimilar crimes, or whether it also includes the same crimes, but all the combined punishment for several crimes prescribed in the specific provisions of criminal law legislation, are the several dissimilar crimes. This shows that in the combined punishment for several crimes legislation ideas, adhere to the "crime" should be the index of different crimes, not including a number of properties of the same crime. Therefore, for the continuous offence as the same crimes, the punishment principle is not applicable to the principle of cumulative punishment.
   From the essential characteristics of continuous offence of same crimes, the criminal penalties, we agree with the "shall be given a heavier punishment or aggravated punishment" view, which should be applied according to a crime shall be given a heavier punishment or according to a crime as the aggravated punishment principle of punishment, namely in the continuous offence punishable according to a crime, not a combined punishment for several crimes next, should be in accordance with the charges against acts shall be given a heavier punishment or as aggravated discretionary penalty. [25 ] specifically, the punishment principle of continuous offence, shall be determined from two aspects: (1) the amount of performance of continuous offense. The amount of the crime, punishment principle of continuous offence can be punished severely, but also can aggravate the punishment. Because the crime of amount is punishable according to the amount of crime itself or is mainly embodied social harm, the harm to the society of legislative behavior into concrete crime amount, and the different number and social behavior of crime amount corresponding to harm. Therefore, to make continuous offence in the form of the amount, because the crime amount of measurability, it is the specific criminal times amount of accumulated provides objective possibilities. At the same time, from the legislation of criminal law in China many crimes' total amount is a basic premise, namely legislation before the specific crimes in the provisions of the accumulated amount, all the provisions of a number of statutory penalty grade. This is to make the form of continuous offence aggravated punishment shall be given a heavier punishment or provide the possibility for the amount of space to. (2) the amount of to non performance of continuous offense. The non crime of amount, the offense aggravated punishment principle is not applicable, shall be given a heavier punishment. Because, in a non amount showed continuous offence in our criminal law embodies the "many crimes" and "serious" two forms, some of which belongs to plot the basic crime, some belong to the crime with aggravated circumstances. We think, only is aggravated offense by circumstances, it belongs to the category of continuous offence, it should apply the aggravated punishment.
   At the same time, the continuous offence applicable penalties is applicable, shall be given a heavier punishment in what circumstances, what are the circumstances applicable aggravating problems, it is an important problem to study. This theory also have different understanding. One is the harm to the society, that is applicable to continuous offence shall be given a heavier punishment or aggravated punishment, to social harm caused by crime act according to the implementation of the. If a continuous made little harm to the society, can be given a heavier punishment; if a continuous crime and serious harm to the society, just as plot aggravate punishment. Of course, if a crime is only a crime unit, not only aggravated constitution, shall be given a heavier punishment. [26 ] two is a crime description function, according to different legal requirements, for the continuous offense is divided into two situations: (1) heavier punishment punishment: and statutory crime description does not have the corresponding legal cover for committing significance, this mainly refers to the criminal law sets only ordinary crime legal punishment, reducing crime legal punishment, or even set the aggravated constitution of crime legal punishment but the aggravated constitution of crime cannot cover the continuous. On such occasions, usually only applicable to ordinary crime legal punishment, and will continuously make as discretionary aggravating plot. (2) for the corresponding legal punishment: the corresponding and the legal punishment crime description has covered the legal significance of continuous offence, this mainly refers to the criminal law set up some can cover constituted aggravated crime of continuous offence. On such occasions, can be applied for continuous offence aggravated crime composition of the corresponding legal punishment. [27 ] for the former view, social harm as the conviction and sentencing of general criteria, should be adhered to, but in the punishment of continuous offence is to harm society as "concrete" standard, is the lack of operability. Then a view from the rules of the applicable perspective is the former view is more specific, should be affirmed. We basically agree with this view, but from the essence of continuous offence on look, for the continuous offense should distinguish crime and non crime of amount and the amount of fixed. Specifically, the first for the amount of crime, continuous crime total amount reached the basic crime constitution amount, should be the basic crime legal punishment, he shall be given a heavier punishment; continuous offence accumulated amount in excess of the amount of basic crime constitution, should be increased punishment. Second for the non crime of amount, as noted above, accord with the essential characteristics of continuous offence is aggravated offense by circumstances, therefore, for non amount of continuous offence aggravated punishment only applicable not applicable, shall be given a heavier punishment.
   Worthy of mention is made, for the span is also a need to study the problem. Because of the continuous nature of continuous offence behavior characteristics lies in the number of crime, has been the implementation of a number of crime criminal behavior before last, these crimes in criminal acts which should start into the evaluation of criminal law field of vision, scope or belong to the judicial investigation trial, span of which is continuous offence. In this regard, China's criminal law does not make specific provisions, the relevant judicial interpretations notwithstanding the provisions, but the standard is not a. There are mainly two kinds of interpretation: (1) year. The judicial interpretation for the continuity of some concrete crimes defined for a year. If the Supreme People's Court on the trial of criminal cases "theft of specific application of law interpretation of several issues" provisions, the repeated theft constitutes a crime, shall be prosecuted in accordance with the law, or the last time a crime of theft, theft within one year shall be accumulated, the amount of theft. (2) prosecution standards. The judicial interpretation of continuity for some specific crime is the limitation period for prosecution of crime in the specific criteria for determining. If the Supreme People's court "on the trial of robbery, snatch criminal interpretation of several issues" application specific legal provisions, plunder of public or private property, without pretreatment by administrative punishment, should be prosecuted according to law, to snatch the calculation of accumulative amount. We agree with the prosecution standard said, because our country criminal law article 87 of the criminal prosecution efficiency were defined. The limitation of prosecution, refers to the state or the term of validity shall be investigated for criminal responsibility of the perpetrator, exceeding the prescribed time limit, the state or the victim cannot exercise criminal prosecution. It should be said, limitation of prosecution system is not only suitable for the single crime, is also applicable to the continuous offence, because according to the provisions of the criminal law of article 89 , the criminal act is of a continuous state, after the end of the period for prosecution of criminal behavior is calculated from the date of. We think, for the continuous make span, if calculated at one year, the result will not be reduced properly on offense, which is not conducive to the punishment for crime. Conversely, a crime for the behavior of continuous implementation, as long as the crime is not beyond the deadline of prosecution in criminal law, it should belong to the scope of criminal investigation; if a criminal acts performed by human behavior or a crime according to the criminal law provisions is beyond the limitation period for prosecution, naturally does not belong to the scope of criminal investigation.
    Analysis of three, the relevant legislation
   As mentioned above, although our country criminal law makes no provision for the concept of continuous offence, but the specific provisions of the criminal law on some specific provisions of the crime and the relevant judicial interpretations are reflected in the continuous offender. Such legislation, on the one hand is by our country in general provisions of criminal law have no definition of continuous offence caused by concrete manifestation; the other hand is our concept of crime "qualitative and quantitative" legislation mode. Continuous crime in our criminal law legislation mainly embodied in two aspects, namely the crime and non crime of amount.
   (a) the amount of legislation made continuous offence. In China, many researchers believe that, according to the amount of continuous offence is committed to solve in Chinese, such as the crime of corruption. The cumulative amount of legislation mode, legislation will be repeated crime amount accumulated as objective specific elements of crime conviction and sentencing. The legislative model has four articles, namely article 153 smuggling ordinary goods, crime, 201st tax evasion, 347th manufacturing, trafficking and transporting drugs, the crime of corruption crime and 383rd. But from the spirit of the legislation on bribery crime, article 386 also belongs to the cumulative amount of legislative mode, which is in accordance with the provisions of article 383rd of the criminal law and the 386 , several bribery untreated, have a cumulative amount of bribery punishment in accordance with the problem. [28] we think, although continuous crime can be manifested in the form of crime, but the crime of amount failed to solve the problem of all continuous offence. The relationship between continuous offence and the crime of amount, in the criminal law of our country is the cumulative amount of multiple crimes, some with continuous crime essence, such as the legislation, the cumulative amount of legislation mode specified in article 347 in manufacturing, trafficking, smuggling, drug trafficking, which belongs to the typical continuous offence. ○ 7 and some do not meet the requirements of continuous offence essence. We think, other amounts for atypical continuous made, such as the crime of smuggling ordinary goods, goods, tax evasion, crime of corruption and bribery crime, the punishment should be treated differently. In other words, for repeated smuggling ordinary goods, goods, tax evasion, corruption and bribery behavior, the behavior of the cumulative amount of time just to constitute a specific crime, this situation does not belong to the category of the theory of continuous offence, but the connection of crime (also called creep crime) , is punished according to continue making principle to be. ○ 8 if the behavioral person repeated smuggling ordinary goods, goods, tax evasion, corruption and bribery and other crimes, the amount of crime constitution condition each have specific crime, it belongs to the category of continuous offence, as mentioned above, should according to the circumstances applicable to the heavy punishment or aggravated punishment. ○ 9
   (two) the legislation made continuous offence non amount. In China's criminal law, is not only the continuous commit crime of amount, as well as several non crime of amount. The non legislative form the crime of amount, is divided into two specific ways, namely multiple (crime) behavior and plot. From the view of non punishment, crime of amount can be expressed as the basic crime and aggravated consequence crime. But we believe in the non crime of amount has only aggravated offense by circumstances is in conformity with the essential characteristics of continuous offence.
   Analysis of 1. basic crime legislation. The legislative mode of the basic crime, refers to the legislation will repeatedly (crime) acts as a specific crime elements. The legislative model has two articles, namely article 264 theft and 301st assembled licentious actives crime. Some scholars in China's criminal law article 201st paragraph first of article 351 of the crime of tax evasion and illegal drug cultivation "in the crime again.." the situation is regarded as the basic legislation model. [29] we think, this view is worth discussing. Because even if the actor "and" the implementation of the act constitutes a crime, but because several times before the behavior person has received an administrative punishment, so several times before the behavior people no longer belongs to the evaluation of criminal law, the criminal acts "and" the implementation of a crime belongs to the typical, rather than the so-called "many crimes", but does not belong to the scope of the discussion of continuous offence. Specific requirements of the principle of legality is based on 97 in our country criminal law, detailed on the part of the crime in the criminal law of 79 years in "serious" situation, which is one of the provisions of the "multiple crime" of the legislation. We think, continuous crime can be manifested as multiple crimes, but the number of crimes in the criminal law of our country does not belong to the continuous offence. For many times with continuous offence crime essence (including the amount of crime and non crime of amount ), the punishment principle should be punished severely or aggravating. For those who do not meet the continuous nature of the several crimes committed, the punishment principle should be re defined, which involves some legislation evaluation and reconstruction of criminal law in china.
   (1) repeated theft. Provisions of penal code of 97 years for theft of basic crime and non crime of amount to the crime of amount of legislative modes, article 264 is the large amount of theft and theft are specified, show many theft of property is not the crime of amount, because the legislation is the number of theft behavior, rather than from a theft the number of property stipulating the larceny. If the number of stolen property from a specified on the theft, belonging to the larger and larger amount of theft, theft cases belong to the crime of amount. The intent of the legislation is reflected in two aspects: one is to cancel the 79 year "habitual" in criminal law of corresponding provisions; two is arranged from the constitution, the strict criminal law. China's criminal law has provided 79 years has sticky fingers, 97 years of criminal law abolished the thievish provisions, and instead of the "multiple theft" provisions. We think that ", the repeated theft" provisions of the criminal law of our country lacks legislative means consistency and coordination. On the one hand, China's 79 years of criminal law provisions of article 152 habitual thieves, cheats, legislation adopts is aggravated punishment mode, because according to 79 years of criminal law provisions of article 151 of theft, fraud, large amount of public or private property, is less than five years imprisonment, and the provisions of article 152nd sticky fingers, used to cheat, five years more than ten years in prison. However, 97 article 264th of the criminal law for the repeated theft, but take the basic crime punishment mode. This shows that the criminal law of our country lacks legislative coherence. On the other hand, legislation to cancel 79 years of criminal law provisions of article 152 of the Cheats (aggravated punishment), 97 years of criminal law stipulates that the 266th "other serious circumstances" (aggravated punishment), including cheats. While legislation to cancel 79 years of criminal law provisions of article 152 of the habitual (aggravated punishment), 97 years stipulates that the 264th "other serious circumstances" ( aggravated punishment), but does not include. This shows that the criminal law of our country lacks the coordination of legislation. Therefore, the legislation should cancel the repeated theft, and which are classified as "other serious circumstances", realize the aggravated punishment, in order to maintain the basic attributes of theft "crime".
   (2) in group licentiousness repeatedly. Article 301st of the criminal law provisions of the assembled licentious actives crime belongs to the theory of the crime. The provisions of the criminal law of our country from all the provisions of the crime, in addition to article 301 group licentiousness crime are not provided, "repeated crimes", but the provisions of the "other active participants in the" ringleaders after. ○ 10 and criminal law provisions of article 301 participated in several mob assembled licentious actives and the 292nd article of the fights are non crime of amount, but the criminal law, but "many times affray" provisions for the crime with aggravated circumstances. From the point of legislation, the provisions of article 301 participated in group licentiousness is not aggravated offense by circumstances, but the basic crime. At the same time, the 301 group licentiousness sin only provides a measurement unit, which participated in the assembled licentious actives situation does not exist the possibility of aggravating the punishment, but the basic crime constitution, can only apply to the basic crime legal punishment. We believe that, from the point of legislation, participated in many group licentiousness is not accord with the essential characteristics of continuous offence. Group licentiousness crime punishment is the ringleader, and joined the licentious behavior does not have the criminal punishment, because any single joined the promiscuous behavior does not have the constitutive elements of crime, participated in many group licentiousness is not a sin. From the legislative intent and the coordination point of view, we think, participated in the promiscuous behavior actually belong to the "other circumstances to actively participate in the". Therefore, from the angle of legislation, we propose in legislation, "participated in the group licentiousness" changed to "actively participate in the". In this way, both to avoid unnecessary disputes in theory, also maintain the intent of criminal law to combat "participated in the group licentiousness" behavior of the legislation.
   Analysis of 2. aggravated crime legislation. Aggravated crime legislation pattern, refers to the legislation will be many criminal acts as the objective factors aggravate the legal punishment. In China's criminal law, crime is a plot legislation phenomenon more, but as a continuous offence aggravated punishment legislation content embodied in "serious" and "other serious circumstances".
   (1) about serious stand. Our country criminal law in many "serious" means also includes a number of the same nature behavior significance. [30] serious into basic committed serious and aggravating circumstances are serious, as the basic crime serious belong to the basic circumstance, the serious circumstances only specific elements of crime, not in conformity with the essential characteristics of continuous offence; only as aggravating circumstances are serious will belong to the scope of continuous offence. From the legislation point of view, with serious crimes belong to non crime of amount, therefore, we think, for the non crime of amount if the circumstances are serious, be stipulate in the basic crime specific crime in legislation, even though the crime of serious contains multiple circumstances of the act, the elements in which belongs to the specific crime the continuous offence, does not belong to the category of continuous offence; and in accordance with the characteristics of serious, because it can contain multiple crimes, which should be as aggravating circumstances are serious, the aggravated punishment.
   (2) about "other serious circumstances". See "from the provisions of the criminal law of China, there are other serious circumstances", some belong to the basic circumstance, some belong to the crime with aggravated circumstances. In the 97 years in criminal law belongs to the continuous offence, "repeated crimes", some provisions marked "other serious circumstances", have no "other serious circumstances" clause, but they all belong to the crime with aggravated circumstances. Legislation belongs to the latter kind of situation. There are seven, namely, article 263 of the robbery, 292nd of the crime of affray, 318th organizing people to secretly cross the national boundary (border) environmental crime, 321st transport people to secretly cross the national boundary (border) environmental crime, article 328 excavating and robbing sites of ancient culture, ancient tombs of sin and the 358 forced prostitution sin. However, in our legislation, continuous crime can be manifested as multiple crimes, but also can be expressed as the object of crime for many people. But this kind of situation is not belong to continuous offence. We think, the criminal law article 236 of the third paragraph of article (two) provision "rape of women, having sexual intercourse with a minor people" should belong to a continuous offence. The 240 section 1 (two) "trafficking in women and children, more than three people" and the 358 1 (three) "forced many people prostitution", do not belong to the category of continuous offence, because after a situation not in conformity with the objective characteristics of continuous offence. For the above accords with the nature of the "multiple continuous offence crime", as the crime with aggravated circumstances should apply the aggravated punishment. Notably, this class contains many crime belongs to the aggravated crime "other serious circumstances" and the aggravated crime belongs to the "serious" are different, because the latter belongs to the theory of aggravated offence, is a comprehensive sentencing elements stipulated in legislation. In other words, heavier elements of the plot committed contains very widely, not only refers to contain as many continuous offence form of crime. From the interpretation of criminal law, criminal judicial personnel aggravating circumstances need to explain and to specific application can be determined according to the circumstances of the case. While the former is the law the crime as objective factors aggravate the legal punishment, in the legislation, many criminal behavior is aggravated punishment only legal conditions.
    Four, postscript
   Continuous offence is a common crime phenomenon in social life, in other words, any kind of specific crime exist continuous offender. But the legislative provisions in the law to reflect continuous crime phenomenon corresponding to one one. From the provisions of the criminal law, the limitation of legislation is shown in the following aspects: (1) as a form of crime, the crime of amount is a kind of common crime and legislation phenomenon, so the crime of amount of continuous offence is widespread legislation becomes phenomenon, however, China's criminal law provides only a part the crime of amount of continuous crime situation, there is still a considerable part of crime of amount of continuous offence is not. (2) non crime of amount of continuous offence, the legislation is the main way of circumstance crime, the aggravated. From the provisions of the criminal law on the crime of amount, non continuous offence legislation also has many deficiencies. Generally speaking, one is the amount of legislation is lack of provisions of aggravated offense by circumstances, not on the non crime of amount of continuous offenders has aggravated punishment; two is that some provisions of the crime with aggravated circumstances terms but not cover non crime of amount of continuous offence cases, thus unable to impose heavier penalties. The situation is actually the reflection of continuous offence legislation phenomenon of our country's criminal law. From the legal perspective, the current legislation of our country is difficult to effectively punish considerable continuous offence. From the actual situation in our country, to solve the legal confusion, the most effective measure is in general principles of criminal law clearly provides continuous crime and punishment principle.
____________
Notes.
   The criminal law theory of our country long-term continuous crime in the break position, that the continuous crime belong to the substantive offense, but due to the continuous continuous criminal intention and behavior exist, so as one crime in broken on the.
   Of course, some scholars questioned the standards constitutes a crime, the crime itself is not considered as the judging standard of crime number, claim to coincide with the object of the crime as the judgment standard of crime number. See Zhuang Jin: crime competition: analysis of crime number structure and system [M] . Beijing: Law Press, 2006: 72, 81. we think the object of crime, the coincidence is a new theory, but the object of the crime of overlap in China still belongs to the crime constitution standard.
   The scholars claim continuous intention is a necessary condition of continuous offence, that the continuous intention refers to the behavior of people in the behavior at the beginning of the implementation of a series of specific nature of the crime has the same meaning to. See Ming Xuan Gao. principle of criminal law (second volumes) [M]. Beijing: Renmin University of China press, 1993: 593
   The same charges, 4 is continuous Offence from the substantive offense according to continuous offence, is the decisive factor not subject to combined punishment for several crimes.
   In 5, strictly speaking, is the same crimes continuity.
   ○ 6 this is a strong argument. See Zhuang Jin: crime competition: analysis of crime number structure and system [M]. Beijing: Law Press, 2006: 262. and to choose, Gao Keqiang: the concept of criminal law, and criminal justice [M]. Beijing: China procuratorial press, 2000: 70. at the same time, the combined punishment for several crimes is a powerful legislative tendency, the amendment to the criminal law of Japan and Taiwan area of our country criminal law is the case.
   ○ 7 because according to the provisions of article 1 article 347 , smuggling, trafficking, transporting drugs, regardless of the quantity, shall be investigated for criminal responsibility, criminal penalties. This shows, any single smuggling, manufacturing, trafficking and transporting drugs, the acts constitute a crime in accordance with the constitution of crime, continuous.
   In this case belongs to a typical 8 crime, one crime or substance.
   In 9 some scholars from the corruption of the proposed legislation significance of cumulative amount of punishment, that China's criminal law for the crime of corruption in accordance with the total amount of penalty of primary significance in legislation is put aside the theoretical debate, usually without corruption processing, whether belonging to the continuous offence or creep crime, or neither Xu Hangfan nor continuous offence but both continuous crime and corruption Xu made, will require the calculation of accumulative amount according to corruption crime. This is the corruption of the continuous offence, the conviction of Mr Xu Hangfan provides legal basis directly, but also for other non creep crime non continuous offence or both have both at the same time many corruption conviction to provide a legal basis. See Tang Shiyue: the crime of corruption study [M] . Beijing: the people's court press, 2002: 214 but, we think, the provisions of the criminal law in the cumulative amount of itself contains the basic principle of continuous offence, Xu Hangfan etc..
   ○ 10 and specified in article 301 are assembled licentious actives crime the crime of disrupting public order of the assembling crime is involved in article 209 to disturb the social order and the crime of assembling a crowd to attack state organs, 291st of the crime of disrupting public order, traffic order, as well as the crime of affray crime in article 292 are not specified "repeatedly (crime) behavior" of the situation.
 
Reference.
   Behavior of [1] bear Xuanguo. criminal law theory [M]. Beijing: People's court press, 1992: 299
   [2] ma ke. comparative criminal law principle of [M]. Wuhan: Wuhan University press, 2002: 776
   [10] [12 [16 [3]]] Han Zhongmo. Criminal law principle [M]. Beijing: China University of Political Science and Law press, 2002: 257, 233, 255 , 256
   [4] what Bingsong. textbook of criminal law (Volume I) [M]. Beijing: China legal publishing house, 2000: 490
   [5] Chen Xingliang. criminal law pandect (by volume) [M]. Beijing: Beijing Publishing House of law, 1999: 646
   [6 [8] [13 [20]]] to Ze, Gao Keqiang. Selected the concept of criminal law and criminal justice [M]. Beijing: Chinese procuratorial press, 2000: 67, 69, 60 , 69
   [7 [15] [19 [24 [26]]]] Zhuang Jin. Concurrence of crime: analysis of crime number structure and system [M]. Beijing: Law Press, 2006: 262, 269 , 262, 262, 255
   [9 [17] [23]] Chu Huaizhi. [M] of criminal integration. Beijing: Law Press, 2004: 321 - 322, 328, 328
   [10 [18] [23] [27] [29] [30] Zhang Xiaohu. Compared with the construction of [M] crime theory. Beijing: Peking University press, 2006: 682 , 770, 773, 783, 783, 784, 777
   [11] Zhao Jincheng. study on crime of laundering [M]. Beijing: Chinese People's Public Security University press, 2006: 206
   [14] [Italy] Du Li Ao, Padovani. Italy criminal law principle of [M]. Translated by Chen Zhonglin, Beijing: Law Press, 1998: 421 - 422
   [21] ma ke. crime theory [M]. Wuhan: Wuhan University press, 1999: 700 - 701
   [22] [25 ] Ming Xuan Gao. Principles of criminal law (second volumes) [M]. Beijing: Renmin University of China press, 1993: 597, 597
   [28 ] Wang Junping, Li Shanhe. Study on bribery [M]. Beijing: People's court press, 2002: 220
 
Author: Wuhan University School of law
Source: "Journal of Gansu Political Science and Law Institute" in 2008 March ninety-seventh period

1, the implementation of the imaginative joinder of offenses refers to a criminal act which violates several charges of crime, this crime often out of one or several sin. Department of justice from the fault, a fault principle.
(1) using the means of destruction of theft of large amount of property, and destroyed a lot of property, to theft crime shall be given a heavier punishment.
(2) committed robbery, stealing state-owned archives, which also constitutes another crime, in accordance with the provisions of punishment heavier punishment.
(3) made of unauthorized sale, transfer of state owned archives also constitutes another crime, in accordance with the provisions of punishment heavier punishment.
(4) the behavior of the people buying counterfeit money after use, which constitutes a crime, to buy counterfeit convicted of a crime, he shall be given a heavier punishment.

2, implicated offense: refers to the implementation of a crime for the purpose, the methods and results of the crime behavior violate other laws.
It is the number of them: the subjective purpose of crime behavior should have same purpose; behavior and acts of method or means behavior objectively or the reason behavior and result behavior involved, namely high incidental. Such as: in order to fraud and forging documents, seal, forged financial documents after the illegal use, the judicial staff in taking bribes perverting the law etc.. Judicial off, in general, from a broken, exception, criminal law clearly stipulates to combined punishment for several crimes, crimes.
There are more than ten kinds of common crimes:
(1) the organization, leadership, to participate in a terrorist organization, and the organization and implementation of homicide, explosion, kidnapping crime, organization, leadership, to participate in a terrorist organization and crime of the specific intentional homicide, explosion, kidnapping crime be punished. ("criminal law" the second paragraph of article 120)
(2) the organization, leadership, to participate in the organization with underworld society nature, or enter the underworld society organization, and the organizational and committed other crimes, be punished ("criminal law" Article 294, paragraph 3 ).
(3) crossing the border to organize other people, and kill, injury, rape, trafficking and other criminal acts to organize people, or to check personnel killed, injury and other crimes, the punishment. ("criminal law" the second paragraph of article 318).
(4) transporting other persons in the border, and killed, injury, rape, trafficking and other crimes against the people being transported, or to check personnel killed, injury and other crimes, the punishment. ("criminal law" article 321, paragraph third).
(5) production, sales of fake and shoddy goods and counterfeit and shoddy products and specific, but also by violence, threats to resist the investigation, combined punishment for several crimes.
(6) the crime of smuggling and to methods of violence, threat of resisting customs, the crime of smuggling ordinary goods, such as smuggling, smuggling valuable cultural relics crime and the crime of obstruction of official crime be punished ("criminal law" 157 article 2 ), note the smuggling does not contain the drug smuggling, trafficking in, violence to resist arrest, if the circumstances are serious, the drug smuggling aggregated consequential offense, which belongs to the inclusive guilty.
(7) the illegal hunting, killing of rare, endangered wild animal crime, illegal purchase, transportation, sales of rare, endangered wild animal, precious and endangered wild animal products of sin, crime of illegal hunting, but also by violence, threats to resist and implement a behavior before, punishment against crimes and the crime of obstruction of official business, (the highest method 2000 year in November 17th "about a number of issues of specific application of law in the trial of criminal cases of destroying wild animal resources in the interpretation of" eighth).
(8) insurance fraud with the intent to cause property damage, the death of the insured, disability or illness insurance accident, such as arson, murder, crime of intentional injury, should be based on the crime of insurance fraud and the behavior of the crimes. ("criminal law" the second paragraph of article 198).
(9) to buy after being abducted women and children of illegal deprivation and restriction of freedom of person, injury, rape, insult, the combined punishment for several crimes. ("criminal law" article 241, paragraph 4 ).
(10) for the implementation of other crime (theft except) and steal a motor vehicle as a criminal tools and will take forcible possession of motor vehicles or lost to other crimes, theft and the implementation of the punishment (the highest law 1997 in November 4th "about a number of issues of specific application of law in the trial of theft case explanation" article twelfth).
(11) the embezzlement of public funds for illegal activity constitutes another crime, or for embezzlement, taking bribes from constitutes a crime, be punished (the supreme law in 1998 April 6 "on several issues of specific application of the law cases of embezzlement explanation" article seventh).

3 , the absorbable offense: refers to the number of crime behavior because another absorption, and loss of independent existence, only to absorb the punishment for crime. Such as: a murder of ethylene, ethylene binding, packing, put up to ten hours in their warehouses, Yu Ziye after the time dragged into the river, into the river to drown. Judicial broken on the absorption light crime: repeat.

4, the absorbable offense refers to the behavior of people in the process of the implementation of a criminal act, and the implementation of a different nature of the crime, but the latter is the former absorption, the criminal law does not punish the only the latter as aggravating circumstances of crime. For example:
(1) kidnapping crimeI intentional injury, intentional homicide (Criminal Law "article 239);
(2) the crime of abducting and trafficking in women and inclusive rape ("criminal law" article 240);
(3) trafficking in women, forced prostitution sin inclusive lure ("criminal law" article 240);
(4) the robbery crime of intentional injury, inclusive of intentional homicide behavior ("criminal law" Article 263);
Note: if the perpetrators after the robbery, and murder in order to kill, shall be convicted of the crime of intentional homicide and robbery, and combined punishment for several crimes. (5) the organization other persons in boundary (border) tolerate prejudice official behavior, crime of illegal detention behavior ("criminal law" article 318);
(6) transporting other persons in boundary (border) crime contains prejudice official behavior ("criminal law" article 321);
(7) the smuggling, trafficking, manufacture, the crime of transporting drugs including prejudice official behavior ("criminal law" article 347);
(8) the crime of organizing prostitution, forced prostitution include rape ("criminal law" article 358).

Criminal law "one crime and several crimes" have continued to make; the imaginative joinder of offenses; aggregated consequential offense; continuous offence implicated offense; crime.
   Mnemonic rhymes: auspicious fruit, even the millennium. Ji, after, continue to make; Xiang, want to the imaginative joinder of offenses; fruit consequential offense, results, results; even, continuous offence; Qian, distraction, implicated offense; Jubilee, suction, the absorbable offense.