Wen Donghai

One, about several criminal punishment theory.

1, continuous crime, continuous crime refers to the same or intentional crime based on the summary, a number of independent crime continuous implementation, violated the same criminal case. That is continuous offence, first of all to have a continuous criminal intent, then must be in the dominant continuous criminal intent, for the implementation of a number of independent criminal behavior (where each crime must be a separate crime standard). Continuous crime is behavior person to active pursuit of crime of the state, often accompanied by related crime and criminal intention revealed plans. Continuous offence is a substantive offense, break a sin, in practice there are common corruption, theft, bribery crimes.

2, a creep crime, refers to the act of deliberate crime based on the summary, continuous implementation of several illegal acts of the same nature in a period of time, each illegal acts alone do not constitute a crime, but a number of violations of the sum in the form of crime together constitute a crime. Determination of creep crime must pay attention to four aspects: first, in order not to artificially enlarge the scope of attack of the criminal law, make clear line there must be legal, such as corruption, theft, the crime of evading taxes and other laws defined in accordance with the law or the amount of the cumulative sum of the number reached the standard of crime, the crime of illegal acts, or only by the general treatment, is legal; second, the subjective must be for generalization of the intentional crime, the act are based on the previously formed with a clear criminal intent, objective and motivation have identity; third, the implementation of a number of illegal acts of the same nature, behavior people must be repeatedly implemented with a behavior in a certain period of time, each behavior and the behavior's alone do not accord with the constitutive elements of crime. In the determination of creep crime, need to pay attention to is the generalization of the intentional crime how to understand it? The summary of intentional crimes, shall make the following several aspects of understanding, (1) behavior in the implementation of illegal acts have criminal intention, though individual violations of Tarshish did not constitute a crime, but does not preclude the formation ahead of the intentional crime; (2) to the occurrence of crime who is an active pursuit of mental state, such as the continuous implementation of a number of corruption and illegal behavior, or the implementation of a number of bribery by active bribery or extortion of illegal behavior, but if it is passive bribery, it is difficult to determine its pursuit of a state of mind; (3) in the generalization of the intentional crime control under the act, people often will have the corresponding criminal plan and scheme.

3, continue to make, refers to the act of the same crime intentionally (refers to the behavior based on the number of actions are within, a certain criminal plan for a crime clear intent), a complete crime break up the whole into parts, complete with several behavior, criminal behavior of each behavior is not independent, several behavior together form the crime. Continue to make in subjective and objective aspects of the standards are stricter than the creep crime, is a special case: crime, if an act does not constitute a gradual offence. It is not possible in crime constitute

Two, on the correct distinction and understanding of "criminal law" article 383rd and article 386th.

1, the "PRC Criminal Law" the 383rd paragraph second: "many corruption untreated, according to the cumulative amount, the Corruption Punishment" clause contains two meanings: one is the cognizance of the crime and non crime. According to Xu the quantity of crime constitution theory, there are many times for corruption, but each time the amount of corruption have not reached the establishment of corruption crime file standard, if the amount of corruption after adding the filing standards, still to constitute a crime, the crime is a fact, for part of the corruption reached filing standards, the other part does not have to file standard, does not meet the accreditation standards for corruption still be punished for the crime, which is actually the special provisions on corruption and crime, is actually using the typical terms of creep crime and continuing crime theory to solve problems of corruption crime, has not only problems of criminal punishment on sentencing; two is in accordance with the relevant theory of continuous offence, the essence of a variety of corruption crime is a crime, namely crime in essence, breaking the one crime. For many corruption, and each time the amount of corruption have reached the standard for the establishment of crime, and its essence is a kind of in a certain period of time for the same offence of intentional crime behavior, a variety of corruption and crime, the form is fully consistent with the features of continuous offence, shall be punished by a continuous offence.

2, the "PRC Criminal Law" stipulates that the 386th: "to commit bribery crime of bribery, according to the amount and circumstances, shall be punished in accordance with the provisions of this article 383rd. The bribes shall be given a heavier punishment ", this article also contains two meanings: one is that the crime should be the relevant provisions of the people's Republic of China on the basis of" criminal law "article 385th" Regulations "and the combination of the Supreme People's Procuratorate investigation cases directly accepted by filing standards and related judicial interpretation of criminal law to be found, any other clause has no effect, so that for the crime of bribery, bribery in many circumstances, if every time the amount of bribes are not up to the establishment of the bribery case, according to article 385th of the criminal law and related judicial interpretations, should not be punished for taking bribes, for the parts meet the accreditation standards some did not reach, reach, part of the establishment of crime of bribery, not reaching the part was not bribery provisions, can not simply copy the second paragraph of this article 383rd of the criminal law by adding processing; two is to have been identified for the bribery case, can be a punishment according to the provisions of article 383rd of the criminal law, for many times bribery, bribery and each were established under the circumstances of the crime, whether it can be in accordance with the provisions of the criminal law of the second paragraph 383rd of the cumulative sum of penalty Then, concrete analysis of concrete conditions, for many the crime of bribery in the back of aging period, should the cumulative sum of penalty, the limitation period for more than a trace, you should not be investigated. Whether the theory can be applied for continuous offence to solve the above problems, should be a concrete analysis of concrete conditions, if the perpetrator for repeatedly bribery crime has continuous criminal intent (often shows active bribery and extortion case), and the implementation of continuous offence, is continuously commit.

3, for the behavior of several bribery, and bribery are not independent each time should not be punished for the crime of the view of legal crime case analysis. For this behavior should be a concrete analysis of concrete conditions, if the perpetrator is a kind of active bribery or extortion case, obviously, the perpetrator of the illegal intent is clear, if several bribery amount is more, also can maintain the same or the summary of criminal intent, but based on the two points, I think should be in accordance with the gradual offence or continue to make the theory of the case to the crime, the first is not the law, article 386th of the criminal law crime of bribery crime is the premise of punishment to the behavior has constituted the crime of bribery, which relates to the conviction of bribery crime should not refer to article 383rd of the criminal law provisions, so this situation by Xu Hangfan in theory the penalties for committing no legal basis; secondly, the crime of corruption and compared, the object of corruption crime is single, usually for the country's property ownership and financial order, and the object of the crime of bribery is often very complex, because it includes not only a violation of private property and public property, but also often appear to be violations of breach of privilege for the profit behavior, therefore, not be bribery to acts of punishment What punishment, does not mean that it is not to be prosecuted for criminal responsibility, if the breach of privilege in violation of the law, also can be held, the behavior of accepting other people's property can be considered as the plot, and thus will not indulge crime. If the perpetrator is belongs to passive bribery case, the criminal intention is not clear, not the same or the summary of criminal intent, at this time, to continue according to the creep crime or crime criminal punishment is the cumulative sum of unfair, also do not accord with the provisions of relevant laws, in this case, should be made by the superior administrative organ or the personnel department to administrative punishment, serious processing, at the same time, the procuratorial organs for the non prosecution cases can also put forward judicial proposals to the relevant departments, administrative organs in accordance with the relevant provisions dealt. There is a kind of behavior is special, i.e. if the behavioral person for the same reasons, several bribery on the same or with a group of people, and each time the bribery alone does not constitute a crime, the identification problems, then, is essentially a continuation guilty, the act of a crime deliberately, from the hands of a person or group of people repeatedly collect property, its profit, his behavior can be completed once, but he did not, but rather to take a break up the whole into parts approach, multiple implementation, fully meet the connection characteristics of offenders, and should be in order to connect the prisoners, the cumulative amount of the sum of several bribery conviction and punishment,

Three, in practice, due to the lack of regulations to distinguish article 383rd of the criminal law and article 386th of the chaos caused by the.

1, the bribery behavior, the court often have no serious investigation of subjective psychological, whether active or passive accepting bribes, bribery, bribery is a single independent crime situation, all in accordance with the provisions of article 383rd of the criminal law of the cumulative sum of processing, which can not reflect the principles of fairness and justice of criminal punishment the cause of criminal law, abuse

2, easy to confuse the bribery and folk gift, reciprocity is the traditional virtue of the Chinese nation, between people and people for social needs often exchange small gifts gifts behavior, this small gift gift often easy to be confused as bribery, if not carefully distinguish, the limit is easily confused crime with the non crime, vulnerable to the general illegal, disciplinary actions wrong as a crime, eventually led to the abuse of punishment. And those human small gift gift giving behavior is widespread, if not to discriminate, will get the fear.

3, the crime of bribery punishment too harsh, the establishment of the crime of bribery is very low threshold, this tendency will prompt some people despise and enhancement, since the law did not adjust the bribery provides room, more than a little fun bribery; on the other hand, the crime of accepting bribes to lower the threshold, will occupy a lot of judicial resources, provides the opportunity to fish in troubled waters it for those big greedy big, make big greed really free at the French Open, delays in the processing; at the same time, will also provide a breeding ground for some people abuse the right of judicial, miscarriages of justice which.

Corruption and bribery of officials should be punished,If not to be able to do the law and strict, make no exception, also do not punish, but, on an official bribery behavior punishment does not necessarily have to class with punishment, as long as the government agencies within the system, strict law enforcement, remove the discipline officials can form a sufficient deterrent to officials.