Twelfth speak  One crime and several crimes

The first section Summary

One, the concept of

Two, to distinguish between a crime and several crimes standard 

         Chinese and foreign scholars have different views, such asBehavior standard, standard legal interest, make standard said, constitutive requirements, comprehensive standardDifferent theories, the theoretical circle of criminal law in China it isThe standard of criminal constitution saysThat, in the distinction between one crime and several crimes should be by the constitution of the crime as the standard. Those who act in accordance with a crime, is a crime, with the number of a crime, is the number of crime.

The second section  A crime theory

　　　Including single crime, continuous crime, the imaginative joinder of offenses, the aggravated consequential offence. The single crime specified explicitly only constitutes a crime, so there is no research.

One, continue to make

   (a) concept

          Continue to make, also called continuous crime, refers to a crime behavior has been achieved, continued violations of the same or similar object for a considerable time after the accomplishment of the crime.The criminal law of the crime of illegal detention, the kidnapping crime is committed to suitable cases.

(two) feature

          

1 continuous crime is a behavior.

The 2 continued violations of the same or similar object.

3 continue to crime after the crime accomplishment, the state continued, the behavior and lawlessness have continued.

4 continue to make is a crime in a time duration. A considerable time, refers to continue to make the duration from the perspective of the nature of the crime, the plot, the harm.

 

(a) the concept of crime, the nature of imagination

          A crime violates several charges of crime, a crime intention to launch based on, implementation of a behavior, violated several object, violating several charges of.China's criminal law does not specify the imaginative joinder of offenses.

         The establishment of the imaginative joinder of offenses should meet the following conditions:

  1.The implementation of a behavior, either intentional act, can also be negligent act.

  2.One act violates several chargesThat is, against the more than two charges, a behavior on the appearance, form which violates several charges.

(four) the principle of punishment of offenses of imagination

         

         

          Theory of criminal law, for the imaginative joinder of offensesA heavier punishmentThat is, in a number of charges against, according to a charge of the heaviest punishment. Comparison of weight in the crime, legal punishment severity should prevail.

Three, the aggregated consequential offense

(a) the concept of aggregated consequential offense

          The implementation of the constitution the basic elements of the intentional crime, heavy result occurred outside the basic constitution of crime of aggravated results, the provisions of criminal law on the results, the suitable cases of intentional injury causing death.

(two) the aggregated consequential offenseElements

   1 there shall be the basic constitution of crime.

   2 must have aggravated the.

   3 the provisions of the criminal law of the heavier than the basic crime legal punishment.

(three) the aggregated consequential offense punishment

 

          The result aggravated crime does not constitute a new crime, conviction still for qualitative the basic crime; sentencing criminal law of aggregated consequential offense penal provisions, do not apply the basic crime punishment.

The third section Statutory one crime

Statutory one crime including the combination of crime and recidivism.

 A combination of crime

   (a) combined with the concept of crime

           It is a behavior in criminal law independent, defined by law as a crime of combination,Such as in Japanese criminal law robbery and rape. China's criminal law not stipulated in the combination of crime.

(two) combined with the characteristics of offenders

 

 

Two, gathered offense

  (a) the concept of the crime of collection

          Collective crime, refers to the act to implement an indefinite number of times of the same crime for the purpose, while the implementation of a number of the same crime, criminal law not as a crime but as a crime form of crime.Including the industry gathered offense committed and offender.

    (two) sets the constitution of crime

   The 1 set of acts committed to implementing an indefinite number of times of the same crime for the purpose of.

   2 gathered offense is usually implemented criminality in several species, such as the number of illegal medical practice.

   3 gathered offense must be specified number of members of the same crime criminal law will be implemented as a crime, such as the crime of illegal medical practice.

(three) gathered offense types

The Japanese criminal law theory for collection of two classification methods, one is divided into habitual offender and business making two kinds, one is divided into habitual offender, offender and occupation make three. Our country criminal law theory is divided into professional crime and offender.

1Professional crime.To a certain behavior is often industry crime, the perpetrator intended to carry out several times the same crime, legislation to implement the same repeated crime crime. For this crime, only to implement the orderly behavior, crime is not established, only repeated the same crime, to constitute a crime.

 

The fourth section Break a sin

         

Classification of common crime criminal law of all countries in the world have two kinds, namely:

1.To division of labor standards. The common criminal into crime, abettor, accessory, some coupled with the organizing offender, this is most countries practice;

2.To act as the standardJoint crime, will be divided into principal and accessory. This is China ancient criminal law in practice.

Classification of common crime in our criminal law adopted"In order to function classification method based on division of labor, classification method to supplement"Standard. The common criminal intoThe principal, accomplice, accomplice under duressAndThe instigator.

(two) the characteristics of continuous offence

1With the same crime continuous deliberately. The intent is the same and not many, the same intentional continuous crime means. Intent is the same, is from the first to the last act of behavior are included within a criminal intent, not on the new criminal intention, as for the same motivation and multiple murder, repeatedly raped the same victim etc..

2Several independent crime behavior continuous implementation. The behavior of continuous offence number must be a number of independent crime, if the number can not act in criminal law is not established as an independent crime, continuous crime, even if one of them act constitutes a crime, it was not continuous offence.

3A number of independent behavior of continuous offence shall be violated the same charges. The same charges refer to exactly the same charge.

(three) continuous offense

Two, the absorbable offense

(a) introduction of absorption and characteristics of crime

          A number of different crimes, in accordance with the general daily idea or the law content, one course of action for his behavior is absorbed, only to set up a crime absorption behavior.

   1 in fact several different behavior.

   Between 2 plural crime exists absorption.

(1) the relationship between the absorption of general experience;

(2) the relation between absorption content on law.

(two) the absorbable offense punishment

   The relation between absorption performance for heavy conduct absorbs the light behavior. The absorbable offense to a felony punishable felony, misdemeanor absorption.

Three, implicated offense

 

(a) the concept of implicated offender

          In order to implement a crime for the purpose, but their behaviors or results behavior violates other crimes, between the reason behavior and result, this method between behavior and objective behavior on the existence of the implicated relation, so called implicated offense.

(two) implicated elements make

 

 The 1 implicated offense to implement a crime for the purpose of. This is the essence of implicated offense.

 2 there shall be more than two, one is the objective behavior, a behavior, or a reason behavior, one is the result of behavior, or both methods of objective act, (cause), and the.

 3 more than two acts have violated the relevant provisions in the specific provisions of criminal law, violated the above two charges, an independent crime, elements in each behavior does not belong to a crime.

The relationship between the 4 has been implicated to be above two behavior. The implicated relation has two kinds: (1) the implicated relation between behavior and objective behavior method. (2) the implicated relation reason behavior and result behavior.

 

(three) the difference between implicated offense and absorbable offense

         Of course there is no relationship between implicated offense in the crime and the two, between absorption committed two crimes such relationships exist.

(four) the punishment of implicated offender

         Implicated offense is a behavior, but the subjective is crime means, objective can not be separated and therefore should be combined punishment, not a combined punishment for several crimes. But when the law has special provisions, shall be in accordance with the provisions of law, a combined punishment for several crimes, such as article 198th of the criminal law on the crime of insurance fraud provisions.

The fifth section Overlap of articles of law

 

          Overlap of articles of law, also called the law concurrence. It does not belong to the pattern of crime number, but the content and quantity of crime in a very approximate.

Concept and characteristics, overlap of articles of law

          A crime because of the law of complex rules, regulations or by several law can be applied simultaneously, but only in the law to choose one to the exclusion of all else, only to set up a crime situation.

Characteristics of overlap of articles of law:

1 a criminal act which violates a law. Human behavior is a deliberately implemented a behavior based on, if the implementation of a number of behavior, not the overlap of articles of law.

A competing relationship between 2 numbers. This Law refers to the legal provisions in force, of the crime and the legal punishment law. This cooperation is of two kinds: (1) the containment relationship of overlap of articles of law, namely "one law all the content as part of another law". (2) two articles each part of enactment concurrent elements overlap each other, namely "part of a law content is part of another law content".

Two, in the form of overlap of articles of law

 

   

   Overlap of law 1 because the behavior mode and the formation of different;

   Coincidence of Law Article 2 for the subject of crime and the formation of different;

   3 for the object of crime is different and the formation of overlap of articles of law;

   Coincidence of Law Article 4 for criminal purposes and the formation of different.

Three, overlap of articles of law and the imaginative joinder of offenses

Principle of application of law, overlap of articles of law of four

   1 special law is superior to general law, usually occurs in the inclusive law

      In closing.

   The 2 method is better than the light method. Generally occurs in the cross overlap of articles of law in.