The Deconstruction Of The Limitative Aggravation Principle In The Combined Punishment For Several Crimes

As one of basic sentence system of our criminal law, Combined punishment for several crimes has caused a lot of confusion from 1979.From "estimating a stack" sentence's injustice, to the questions arising in the practice, such as how to combined varied period of freedom penalty; how to combined varied additional punishment; how to combined the new criminal and the missing criminal; and how to combined when the original penalty has changed then fined the new criminal or the missing criminal. All of this has led the injustice in the practice. In this paper, I will from the principle of the combined punishment, focus on the limitative aggravation principle, Combined with china's current judicial environment and the current law enforcement. Under the guidance of the criminal policy, I put forward deconstruction the limitative aggravation principle.In this paper, I first examine the original of the limitative aggravation principle in our country's ancient time; then compared other continental law countries and region's combined punishment, we can see the formal rationality of the limitative aggravation principle. But when combined the china's current judicial environment and the current law enforcement, especially the commutation system, we can see many questions. Without popular support, it can't realize the special privation, can't heal the psychological harm of the victim.The foreign criminal law is different with our country's legislation on penalty structrue,which can make up of the deficiency of the limitative aggravation principle. Different with the aggravation principle of other countries, and different apply with the commutation system in a large scale, the limitative aggravation principle in our country applied too simple, the judge has considerable distinction, and the commutation system made the "discount" sentence can be decreased by law. So I put forward the idea to deconstruction of the limitative aggravation principle.The merge principle and the absorption principle will replace the limitative aggravation principle. Then how to replace? First, I layered our criminal laws the crime. I try to divide all of the crime into three layers:misdemeanor, middle crime and felony. I think that the three years imprisonment as the line between the middle crime and felony and the two years imprisonment as the line between the misdemeanor and the middle crime will be suitable. The merge principle will be applicable to the middle crime and the felony; the absorption principle will be applicable to the middle crime and the misdemeanor or the felony and the misdemeanor. The merge principle needs "one crime, one punishment" which can reflect the value of justice and order very well. But the merge principles severe can't embody the value of freedom. Then the principle of absorption is good to make up the loss of merge principle. It well reflects the penalty's modesty, conform to the world trend. So, when in the combined punishment for two years imprisonment crimes of every crime, we should apply the merge principle, and sentence the sum of the term. If one crime will be sentence more than two years imprisonment, the other crime will be sentence less than two years imprisonment, we should use the principle of absorption, only sentence the more than two years imprisonment. When use the principle of absorption, we can increase the amount of fine.The merge principle and the absorption principle apply in the combined punishment for several crimes have many advantages. First, it in line with the principle of legality. The merge principle especially meets the clarity between the crime and the punishment, and the absorption principle can meet the connotation of the human rights. Second, it can meet the requirement of balance between the crime and the punishment. Third, it can meet the requirement to equal application of law. On the same time, the merge principle can embody the criminal policy of "severe", To accumulation the term of more than two years imprisonment by the merge principle, for the reason is the criminal whose personal danger larger and the criminal social harm. Different with the "strike period",the merge principle on the basis of the legislation, the term of the sin is relate with the criminal. There is no cases that abusing the punishment. It similar to the world universally "heavy"criminal policy. The absorption principle embody the "wide"criminal policy, to absorb the term of the less than two years imprisonment, is considering the criminal is light and the personal danger is small. In order to this criminal can back to the society after the transform, the community correction is more suitable to maintain the stability of social order.In the effect of the penalty application, the merge principle and the absorption principle have three advantages. First, It can promoting the balances of the sentence,' one sin one punish, combined sin for several crimes" is the best embody of the "nemesis" view of the criminal law, through that can reach the demands of the justice. Only when the legislation achieve balance the crime and punishment, the justice achieve the balance sentence is possible. Second, it can improve the existing penalty structure. Although, at the present stage, not all were sentenced life imprisonment after commutation is only served the shortest term, some maybe longed the term of the imprisonment. In the absence of unified regulations, there are different understanding and different mode in our country which are difficult to solve the problem that imprisonment is too light". Finally, it can well realize the purpose of penalty. To realize crime prevention need the public sense of identity by the"retribution"and through the inspection of utilitarianism. The Penalty should be neither too strict to cause heavy penalty which waste resources lead to excessive application, or too heavy to lead the indifference of human rights; and too light to balance the most basic justice. Combined punishment for several crimes, the merge principle to treat the felony and the middle crime, not only satisfy the need of balance between the crime and the punishment, also meet the victim's revenge; while the absorption principle be used to the felony and the light crime or the middle crime and the light crime, not only save the application of the punishment, but also recovery the victim's losses actively and restoration the social order. So, deconstruction of the limitative aggravation principle can realize the value of penalty. From the essence of the limitative aggravation principle, analysis of the value, we can found:first, the limitative aggravation principle can't reflect the justice, one is the unfair of the legislation, and the other is the unfair of the judge. It can't embody the equality. And it can't reflect the balance. Second, the limitative aggravation principle can't reflect the value of order. Maintain of order is in the prevent of the penalty. In the general prevention, the limitative aggravation principle discounts the penalty of every criminal. In the special prevention, it hints the criminal he can make a lot of sin as long as he don't exceed the boundaries, the maximum punishment is twenty year's imprisonment. Third, the limitative aggravation principle can't reflect freedom. On the one hand, penalty maintance the criminal freedom, the tolerance theory of general prevention advocate improving the offender's treatment to maintain them freedom. On the other hand, it protect not crime people's freedom through punish the criminal.The merge principle and the absorption principle instead of the limitative aggravation principle, it can avoid the defects of the limitative aggravation principle effectively, and in accordance with the basic principles of criminal law; with justice, order and freedom value can embody China's criminal policy, and it is not be chaotic in the practice. So it will be the rational choice in China's current judicial environment.