| In the theory of criminal law, the imaginative joinder of offences, as an important crime form, has attracted the attention of scholars home and abroad all long. However, as the study continuously goes deep, the scholars find that the theory of imaginative joinder of offences has come to a blind alley. In the writer's opinion, the reason why present theory is caught in trouble is that"the action"underlying the imaginative joinder of offences is mistaken by the traditional theory. So the writer will reelaborate"the action", criticize the traditional imaginative joinder of offences theory and thus structurally ponder over this thesis.Besides the preface and the epilogue, this book is devided into 6 chapters, which are the introduction, the structrual theory of imaginative joinder of offences(part one), the structrual theory of imaginative joinder of offences(part two), the essential theory of imaginative joinder of offences, the relation theory of the imaginative joinder of offences between its relative category,and the punishment of imaginative joinder of offences. The abstrcat of each chapter are as follows:Chapter 1 Introduction. From here, the thesis carries out. In this part, first of all, the writer gives a simple analysis on the definition and structure of imaginative joinder of offences. From the perspective of the concept, it seems that the one action of Imaginative Joinder of Offences(from the surface)violates several disciplines of criminal law, but actually it is a kind of crime form which doesn't conform to the fact. The basic structure of Imaginative Joinder of Offences should be the actor only does"one action"in the form and"one action"in the form conforms to several constitutions of a crime. At the same time ,with the help of the arrangment of the development of Imaginative Joinder of Offence's legislation and theory, the writer opens up the present embarrassing prospect of the theoretical study of Imaginative Joinder of Offences. He also points out where the problem of the imaginative joinder of offences'study lies and that"the action"is the key to all the knotty problems of criminal law. The writer thinks that the present study of the imaginative joinder theory was lead to a wrong way in the beginning. Consequently, this problem is becoming more puzzling and farther from the point. Actually, the starting point of the study of imaginative joinder of offences should be nature of the action .As long as the nature of the action is distinguished , can the nature of the crime be exactly decided. Meanwhile, scientific premise and standards for the punishment principles are offered. All the problems about imaginative joinder of offences are concentrating here. Explicitly speaking, in the writer's opinion , there two misunderstanding points of the study of imaginative joinder of offences which cause the imaginative joinder of offences has no results. The two points are the confusing cognition of the action concept and the miatanken understanding and use of the standards for crime.Chapter 2 The structrual theory of imaginative joinder of offences(part one)——the argument of"one action". Generally speaking, One action is one of the basic structure which form imaginative joinder of offences, while the problem and argument of imaginative joinder of offences focus on the understanding of"one action". The writer contends that there is something wrong with the way in which scholars elaborate and understand the imaginative joinder of offences with traditional action theory. That is because the the several traditional action theories didn't give a correct concept of the action. They all take"body movement"as expressing element of the concept of action, and think that one's action can only be expressed as one's body movement. These metaphysical thoughts, which mere emphasizing on action's"appearance", ignoring action's"essence", emphasizing on action's"form", ignoring action's"conten"t, must lead to the lack of logic of action concept; thus action concept will lose its original function. According to the dialecical materialism ,"action"is the abstract of human's dynamic practical activities, a dynamic practising process in which"the subjective is expressed by the objective". The constitution of action should be a organic integration of the objective element, object element, subjective element and objective element. Through the analysis of action's subject, object, subjectivity, objectivity and its elements, and together with the investigation of human's social nature, the writer defines the action as :action means that controls or should control certain conditions, acting on the certain object's being process. Actually, this is the definition of action in general sense. At present, there are different cognitions of the nature of"one action"of Imaginatative Joinder of Offences in the theory of criminal law. The chief reasons are: firstly scholars mixed the relationship between the evaluation objectivity and evaluation object, i.e. between"being"and"doing"when understanding the action nature of Imaginative Joinder of Offences. On the other hand, the scholars in China have general misunderstandings and misusages on action. After clarifying relative concepts and categorical relationships, the writer thinks that the"action"of Imaginative Joinder of Offences should be the action in general sense existing on the natural meaning without any criminal meaning or other evaluation meanings. It is the oringinal appearance of action. With respect to the judgement of the number of crime, there are a lot of different ideas. The chief four are natural idea, social idea, idea of constitutive elements and legal idea. Each of them has defect in different degree. Action has grades. In different grades or different evaluation fields, or even for different purposes, the concrete concept of action is different. On the basis of this action concept , the writer thinks that the judging criterion of the number of crime will differentiate as the action's grades and fields differentiate. Meanwhile, the judging criterion will also differentiate according to the purpose of study, evaluation. Generally speaking(without the natural meaning of the action which has value-evaluation, or the meaning of existentialism), the criterion of the number of action should be and could only be the subjective elements of the action. The content of the subjective elements not only decides the nature of action and also its number. According to this standard, the action or a set of actions done by a person under the control of a subjective content(the concrete content of cognition and controlling condition)are one action. Actions done by a person under the control of several subjective contents are several actions. In terms of value, realizing a right or violating an obligation is one action. Realizing several rights or violating several obligations are several actions. When a certain value system just regulates obligation, violating its one obligation is an action; violating several are several actions. On the basis of what's mentioned above, in the theory, the action of imaginative joinder of offences is an outward , direct and formal action without its subjective aspects. That's the so-called"body movement"without subjective contents in the traditional action theory. The writer thinks that the"one action"of imaginative joinder of offences is actually several ordinary natural actions together"being paracitic on"or"with the help of"the same outward , direct formal body, i.e. a or a set of"body movement(s)". In a word, the"one action"of imaginative joinder of offences seems as one action on the surface, but actually contains several actions in general sense. Imaginative joinder of offences is"the surface of one action"covering"the fact of several actions".Chapter3 The structrual theory of imaginative joinder of offences(part two)——the judgement of the crime's number. The other necessary element of imaginative joinder of offences is that the action conforms to several crimes. With the definition of action and in terms of the fact, the constitution of a crime should be a organic integration of all the objective elements and subjective elements which is regulated by the criminal law and judges a certain action as a kind of crime. Observing on the development of the criminal constructional theory in the mainland law system, the theory of special constitutive elements of crime develops through several steps, which are special constitutive elements of crime are only the guiding image of crime type; special constitutive elements of crime are the appearance of law-violating; special constitutive elements of crime are a law-violating type; finally special constitutive elements of crime are a law-violating responsibility type. This developing condition has similarities with the criminal constructional theory in China. The criminal constructional theories home and abroad in the end confirm one fact: As crime is a process that"the subjective is expressed by the objective", constitution of a crime as the model reflection of criminal action should be the integration of subjectivity and objectivity. The subjective and objective aspects of a crime can't be separated. Comparesed with the criminal constructional theory in the mainland law system, the traditional criminal constructional theory is more reasonable. However, the academia have much misunderstanding about the constitution of a crime and its special constitutive elements of crime is dialetical and united. The core of the constitution of a crime is not the objective elements by traditional opinions, i.e. the action, but the subjective elements. The sujective criminal offense , included in the action represent the nature of the crime action and dominate the crime action. As the constitution of a crime is the legal structure that reflects the special nature of each concrete crime, each crime has only one constitution of a crime. The action conforming to one constitution of a crime is one crime. The constitution of a crime whose action is conforming to different qualities are crimes of different qualities. There are two cases in which the action conforms to several constitutions of a crime. One is that the action conforms to more than two constitutions of a crime of different qualities. The other is that one person's two action conforms to the same constitution of a crime.Chapter4 The essential theory of imaginative joinder of offences——also talking about the standards for the number of the crime and its application. As to the nature of imaginative joinder of offences, in the theory, there are 4 differences ideas: the essential one crime, the essential plural crimes, the one crime in the scientific criminal law and the overlapping of article partly. These ideas all have many defects and contradictions. They can't reasonablly coordinate the relationship of the criterion of the number of crime, the nature of the number of crime of Imaginative Joinder of Offences and the judging principles of Imaginative Joinder of Offences. The writer contends,"action"is only the basic point of the analysis of imaginative joinder of offences. If we will judge whether the"one action"of imaginative joinder of offences which commits plural crimes is the essential one crime or the essential overlappling of plural crimes partly, we still need to reasonably set a certain criterion and apply it corectly in order to get a conclusion. In the theory of crinimal law home and abroad, there are different views on the criterion for the number of crime. Most of them have very clear erroneous points. With respect to the idea which is on the whole acknowledged its reasonability, writer assents it. However, in practice, this criterion is ignored or even mistakenly used. So this criterion still needs to be deepen and detailed. Through the elaboration of the relationship between obligation, obligation in the criminal law, constitution of a crime and offence ,we can find that special constitutive elements of crime is the concrete embodiment of obligation in the criminal law, and the subjective crime is the core of the constitution of a crime. How to judge one's action including one constitution of a crime or several constitutions of a crime mainly focuses on offence. As a result, the criterion for the number of should be the actor's"subjective crime". A set of actions dominated by one offence is one criminal action. On the contrary, actions dominated by several offences are several criminal actions. However, in the application of this criterion to decide the number of crime, we still need to obey some basic principles , i.e. the principle of completely judgement, the principle of banning repeated judgement. Under the guide of the criterion for the number of crime , according to the"offence"criterion for the number of crime and with the structural natural quailty of imaginatitive joinder of offences, we inevitably come to a conclusion: imaginatitive joinder of offences is plural crimes in essence. Imaginatitive joinder of offences is the actions done by the actor dominated by several criminal offences , sequentially conforming to the crime form which is formed by several constitutions of a crime.Chapter5 The relation theory of the imaginative joinder of offences between its relative category. From the present enquiry in the theory of criminal law, there are several categories which have close relationship with imaginatitive joinder of offences: overlapping of article partly; implacated offence; continuous crime and so on. Through demonstration, the writer thinks that overlapping of article partly is the exceptation of special constitutive elements of crime in essence. It is a norm-determining theory which superficially conforms to several norms in criminal law but actually only fits one norm in criminal law. As a result, the main defferences between imaginatitive joinder of offences and overlapping of article partly are as follows: Firstly, imaginatitive joinder of offences is a crime form while overlapping of article partly belongs to the explaining theory of criminal law's concrete norm. Secondly, overlapping of article partly is essentially violating a criminal norm,i.e. the action conforming to the constitution of a crime. Thirdly, in the case of overlapping of article partly, there is only one crime . Imaginatitive joinder of offences must be essential plural crimes. Fourthly, overlapping of article partly gives preference to avoiding the repeated evaluation of action. Of course, overlapping of article partly and Imaginative Jonder of Offences have one main identical point, i.e. the two are both imaginative joinder. The falsehood of overlapping of article partly is that the one action conforms to several constitutions of a crime form the surface, but essentially conforms to one constituion of a crime. The falsehood of imaginatitive joinder of offences is that one action conforms to several constitutions of a crime from surface, but essentially several actions conform to several constitutions of a crime. The distinguishments between imaginatitive joinder of offences and implicated offence are more clear. First of all, the radical difference lies in their actions in the expressing ways. Secondly, imaginatitive joinder of offences is several actions, several offences , and these several offences can be the offence of the same category. The several crimes of implicated offence commited by his several actions can only be deliberate crime, even direct crime. It won't emerge the multiplicity of imaginatitive joinder of offences in the form. When arguing the relationship between continous crime and imaginatitive joinder of offences , whether continuous crime and be-to crime can constitute imaginatitive joinder of offences at the same time is mainly concerned. There is an argument between subsumtion and exclusion in theory with regard to the solution of this problem. This argument to some extent enlighten the understanding of criminal law in China.Chapter6 The punishment of imaginative joinder of offences. With respect to imaginatitive joinder of offences'judging principles, the view of"according to the capital felony"are always existing in the theory of criminal law home and abroad. However, these ideas not only lack sufficient theoretical support, but also have fatal defect in logic. These views lack sufficient theoretical support and meanwhile violating the principle that crimes are judged by law and the principle that crimes match punishments. In theory, the judgement of Imaginative Joinder of Offences is influences by the basic standpoint of criminal law, the basic principles of criminal law, the principle that one case isn't rehandled in lawsuit and the economic principle in lawsuit. In the present criminal law and the argument of the criminal law's theory, imaginatitive joinder of offences and plural crimes of essential overlapping are handled by different means. Imaginative Joinder of Offences is given one kind criminal punishment, while plural crimes in essence are given cumulative punishment. With the consideration of the objetivity of criminal quantity, the economy of lawsuit and equal responsibility, the one-criminal-punishment system is not the scientific and reasonable judging method. It should be corrected. On the basis of fundamental standpoint, principles in criminal law and various considerations in lawsuit law, the writer advocates that imaginatitive joinder of offences should take cumulative punishment, which will correspond to the nature of crimes of imaginatitive joinder of offences. At the same time, cumulative punishment won't cause heavy penalty and the crime andits punishment unbalanced.
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