Liu Fengke: criminal law review method

Judicial examination, is a test type test, goals and teacher candidates to study the teaching goal is the same, is infinitely close to and grasp the thought and the rule of proposition. In order to achieve this goal, we must use the correct, effective learning methods, rational use of various review materials.

Criminal law review, the review has three, namely, over the years, the basic theory and method a handout. How to fully, effectively use the above three materials, is the basic guarantee of our review of the criminal law.

One, the rational use of copyright

Many students do not pay attention to the research over the years. In the review process, just as the touchstone to test his calendar year Zhenti review results, which used to put in a month of the year. Before the test is carried out in the self test. Use this to Zhenti extremely insufficient, did not play value. If do Zhenti only concerned about whether the to do, whether to remember. The answer, even if it did100, there is no effect.

Over the years is a concentrated embodiment of propositional thinking and rules of materials, is one of the most important material candidates review; at the same time, over the years is also testing notes, book is suitable for the judicial examination standard view. From the examinee to review to participate in judicial examination, to finally take exams, the entire review process will be used over the years, so the cycle., review any stage of the process, need to use it in different stages: review, the examinee Zhenti study effect is not the same as.

Through the study of the Zhenti, candidates should try to reach the following levels:

(a) familiar with the exam, grasp the proposition test

Through the study of Zhenti familiar proposition, often point, will test center, basic characteristics and familiar with the mode of propositions, such as grasping proposition direction, the specific sites from the perspective of what knowledge, familiar with may be combined with each other to proposition.

(two) do Zhenti, remember the correct answer

Criminal law exam, the answer should be the official shall prevail, especiallyIn 2006 after the exam, the official answer is no problem. Don't deny the official answer, if challenged the official answer, the main cause is the theory can not own interpretation of it.

(three). Understanding the anatomy, the proposition thought

Zhenti study, don't care whether they picked the right answer. Wrong, think about why I do wrong, why make such a mistake, what are the reasons why, so the next for the same problem, don't make the same mistake. Of course, do, also not laissez faire, but think, what is the problem, why would such a proposition. In other words, whether right or wrong, must know why.

(four) infer other things from one fact, master related sites

We review over the years, in response to the test, how to build a bridge between the past exam questions and will test, we review the pursuit of the goal. So, after understanding. Test, also think more, and the sites directly, indirectly related knowledge and what. Because in the future when the proposition for the same test, in order to avoid repeated questions, proposition will choose another view or change a view, change the propositional assessment.

Method: two, the aggravating circumstance is the problem point, associated with other crime is the direct proposition point

(a) in recent years, new trends directly according to law expression evaluation is proposition.

For example, the criminal law sixtieth stipulation: "legitimate debts incurred by the criminal element before the property, need to use the confiscated property to repay, the request of the creditors, shall be repaid."

(in 2009 two papers No.9 questions)About the confiscation of property, which one of the following statements are true? The D option was "Ding for medicine to Lee loan fifty thousand yuan, a year after the Ding for the crime is sentenced to confiscation of property. Whether Lee request, once the court found that the debt, should be judged with the confiscated property to repay". According to theArticle sixtieth of the criminal law, legitimate debts incurred by the property before the criminals by creditors, active request, the people's court shall repay. If the creditor has no active request, the people's court has no obligation to offerThe confiscated property to repay. SoThe D option is wrong.

(2010 2 fifty-sixth) about the confiscation of property, which of the following statements is true? The C option is "a for smuggling was sentenced to confiscation of property shall be sentenced to not. The negative gambling debts, the creditor shall be reimbursed by request". According to theArticle sixtieth of the criminal law,The request of the creditors shall repay the debt, only legitimate debts incurred by the property before the criminals, and gambling are unfair debt shall be repaid, does not belong to the scope of.

Two.Aggravating circumstances (aggregated consequential offense or crime with aggravated circumstances) is the proposition points now. Because of the aggravation situation itself may have also been identified as other crimes in the law, so whether the aggravation situation, linked with the problem of crime number etc..

For exampleSpecified in the first paragraph of article 328th: "history, art, robbing has scientific value of ancient cultural sites, ancient tombs, the Department for more than three years to ten years in prison, and shall also be fined; if the circumstances are relatively minor, is less than three years imprisonment, criminal detention or control, and fined; in any of the following circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property:

(a) they identified as a national key cultural relics protection units and the provincial cultural relics protection units of the tomb of ancient cultural sites, buried;

(two) the first molecular robbing ancient cultural ruins, ancient tomb group;

(three) repeatedly excavating and robbing ancient cultural sites, ancient burial;

(four) excavation of ancient sites of ancient culture, funeral, and stealing precious cultural relics or causing serious damage to valuable cultural relics."
　 In the fourth paragraph of the above method can distinguish problems aggravated situation aggravation situation involving theft, crime of intentional destruction of heritage, negligent damage cultural relics crime and crime robberies ancient tombs.

[] classical questions(In 2010 sixty-third) 2 national key protected a excavation of the ancient tomb, steal a large number of precious relics, and some cultural relics secretly shipped overseas to sell for profit. The judicial authorities found a for the destruction of evidence, the remaining valuable cultural relics. About the case, which of the following statements is true?
A. shipped overseas sale and historical relics, belongs to not the penalty after behavior, the armor to crime robberies ancient tombs, larceny
B. is for their historical relics destroy evidence, not on a crime, should be a crime robberies ancient tombs, theft, the crime of smuggling cultural relics
C. theft of cultural relics is robberies ancient tombs of statutory punishment of crime should be based on the conditions of upgrading, a crime robberies ancient tombs, crime of smuggling cultural relics, historical relics intentionally crime
The establishment of D. robberies ancient tombs of the crime is not theft of cultural relics as the premise, the nail should be crime robberies ancient tombs, larceny, crime of smuggling cultural relics, historical relics intentionally crime
According to the criminal lawSpecified in the first paragraph of article 328th, behavior in process of excavating and robbing sites of ancient culture, ancient tombs, ancient cultural sites, ancient tombs from the precious cultural relics were destroyed, the aggravation situation was robbing ancient cultural sites, ancient tombs sin. But in excavating and robbing sites of ancient culture, ancient tombs, intentionally destroys precious cultural relics of ancient cultural sites, ancient tombs in or places of historic interest and scenic beauty, it should be combined punishment for several crimes. Behavior person excavating and robbing sites of ancient culture, ancient tombs, which will take forcible possession of illegal Heritage (theft of valuable cultural relics), still by excavating and robbing sites of ancient culture, ancient tombs crime, no longer recognized as crime of theft. The correct answer isABD.

Three, the theory of criminal law: the old and the new theory in the judicial examination of compromise

Theory of criminal law theory constitute different crime, because the constitutive elements of a crime are basically the same, but the combination between the various elements are not the same, the system is not the same, this leads to understanding ideas and judge the sequence differences. This method mainly belongs to the dispute, the vast majority of the conclusion is still consistent. But in science, rationality, efficiency, portability difference. Judicial examination proposition not according to the different crime itself assessment.

(a) have different theories

Some sites require candidates to have, different theories, different conclusions have not classmates said that.

For example, the specific understanding of the facts object error in error, combat error, the presence of specific coincidence and statutory compliance with said differences, to require candidates to understand the two kinds of different theories and conclusions.

If causality errors in advance deliberately situation, there are different views in theory.

[] (2010 classic questions which the criminal law case analysis topic) Zhao killed Qian Mou, think the money one has died, will the money a "corpse" bind heavy thrown into the river. After identification, the money is the drowning death.

Zhao Qian Mou death induced by the fact that in the theory of criminal law, why is that? The theory of criminal law which has several opinions about this situation? How do you suggest this be handled? Why?

Analytical:

This case is a typical case of ex ante deliberately.

The theory of criminal law are four kinds of opinions in this case, the fourth viewpoint is reasonable.

One view, the first act of the establishment of attempted murder, second act established the crime of negligence causing death; some believe that the establishment of the imaginative joinder of offenses, who advocated the establishment of crime number. But this view is in doubt: because the behavior person to kill intentionally killed to be killed, but the establishment of attempted murder, in violation of the general idea of society.

Two point of view, if in the implementation of the second act on the occasion, for death to not deliberately (or indirect intent), then the whole set up an intentional homicide crime; if in the implementation of the second act on the occasion, believe the death has occurred, it was attempted murder and the crime of negligence causing death. But this view is problematic: because the objective fact behavior exactly the same, because whether the actor mistakenly believed the results, to determine whether the behavior is divided into two acts, the lack of reason.

Three point of view, the two act as a behavior intentionally, as will dominate the behavior for the general intent, only to set up a intentional homicide crime. But this view is also in doubt: this theory has distorted.

Four point of view, before and after the two act as a whole, as error handling of causality, as long as the development process of causation is within certain causality, on the establishment of an intentional homicide crime. On this occasion, the causal relationship between the behavior and result of dead did not interrupt, still should be a causal relationship between the behavior and the result must be first, and the reality of the result is consistent with the behavior of people to achieve results, it should be based on intentional crime accomplished crime.

(two) the old theory of choice

1. traditional theory is not likely to do the theory

If a certain theory in traditional theory, in the academic community has been strongly criticized the mainstream view, the view is now impossible proposition. For example, if an act in fact cannot be infringed the legal interests, the traditional theory may think that was attempted, but this view was criticized by the mainstream academic theory, the view now may not appear in the proposition (the current view is not a crime).

2The old and the new. All recognized theory angle, special examination

For example,Identify the implicated relation implicated in the crime. According to the traditional theory, which requires the presence of the implicated relation objectively, also called subjective also have implicated relationship was not implicated offense; otherwise. For example, a year ago in order to hunt the theft of a gun, a year after the bank robbery in order to use guns, was not implicated offense. However, if B to murder and theft of firearms, and murder, then hold implicated offender.

But the judicial examination, took a different view, namely hold implicated relationship, not only can identify the implicated relation in the objective, subjective, and this relationship in social life must also have the usual: judging from the rule of thumb, concurrency two behavior has implicated relationship has very high, namely the implicated relation the type of. Otherwise, does not hold implicated offender. For example, burglary murder, the establishment of implicated offense; but the illegal theft of gun and kill, not identified as implicated offense(although the gun is often used to kill, but the theft of firearms was not the murder usually means behavior). Moreover, forged documents, certificates, seals of the armed forces posing as soldiers try every trick to mislead the public, can be identified as implicated offense; but the theft of vehicles after posing as soldiers try every trick to mislead the public, should not be regarded as implicated offense.

3The new theory may check

For some new theories of criminal law in recent years, if in the academic community has been widely recognized, will also enter the judicial examination proposition range. After all, with the development of social life, need to conform to society's understanding of law. The society is in progress, the theory also in progress. For example, part of the principle of common crime that alternative to traditional common criminal theory, is the embodiment of criminal law theory development.

In short, for the judicial exam review, not a mechanical memory or "endorsement" of the process, we also need to think about the candidates in the process of learning knowledge, learn new knowledge in the process of thinking. "Learning without thought is labor lost, thought without learning is perilous", this is the best annotation Scott success, accomplishment is the necessary legal occupation.

Authors: Liu Fengke