Researches On Absorbable Offence

Absorbable offence is one of the most controversial problems of the theory of plural crimes. There are a lot of controversies in the theory on almost all questions of absorbable offence. Study on absorbable offence,we can construct it scientifically. It can free the theory of criminal law from unnecessary controversies, and can re-clarify the relationship of each plural crime,set up clear, scientific, and practical system of the theory of plural crimes. For this reason, this text research deeply on absorbable offence and related issues with seven chapters.The preface points out mainly the problems of current theory of absorbable offence and the significance of studying on absorbable offence. The current theory of absorbable offence exists a lot of problems. For instance,the concept of absorbable offence and its standards are in chaos,and the boundaries of each formation of plural crimes are fuzzy. In addition, it has not been thoroughly studied in theory on the scope of absorbable offence.So research on absorbable offence has theoretic value and practical one.We re-construct the concept of absorbable offence in ChapterⅡ,and on this basis,studied its three elements(because this article studied the absorptive relationship in a single chapter). This article holds that absorbable offence consists of several crimes,and its several behaviours must violate different crimes. These acts have a typical following relationship so that these crimes exist inclusion relation, according to one main crime to punish can reflect the evaluation of its several crimes.Its several crimes do not disappear due to absorption. In condemnation, Other crimes remain, when determining its legal effect, should use by one layer on layer punishes primarily, take aggravated punishment as the auxiliary principle.Therefore, the concept of absorbable offense can be expressed as follows:several behaviors which the behavior person implemented offend different crimes, as these behaviors have the relationship of the typical accompany, these crimes exist the containing relationship, and according to a crime to be punished mainly。This chapter only study three elements of absorbable offence. First of all, absorbable offence must have several criminal behaviors。The study on one criminal behavior is the key to the question. This article holds that a criminal act is the perpetrator implement which accords with legal crime-constitution,it is subjected to the same motive and has the same situation objectively. Absorbable offence must be formed by several such criminal behaviors. Secondly,its behaviors must achieve a number of crime-constitutions. Not only are a number of crime-constitutions realized one by one, but also each crime-constitution has substantive action in punishment fits the crime. Therefore,each crime-constitution must be revealed plainly. Finally,its criminal behaviors must offend different crimes.If they offend the same crimes, should not constitute absorbable offence.ChapterⅢmainly discusses the concept of absorptive relationship and its scope. This article holds that it should appraise normaly from the link of the behaviors and crime-constitutions to judge absorptive relationship。That absorptive relationship is normal appraisal relationships of several crime-constitutions to several criminal behaviors.It includes the following two aspects:first, these crimes is connected by one criminal behavior or one crime-constitutional element, and all crimes have the interconnecting relation with the interconnecting behavior or element. Second, these crimes have an included relation so that we can appraise them integraly. Therefore, the absorptive relationship can be expressed as:a number of crimes have the included relation because of their behaviors having a typical following relationship and according to a crime to be punished mainly can reflect the valuation on its crimes. This article holds that the circumstances of absorptive relationship includes the following two species:a number of acts have the interlock relation or adjoining relation. If there is no such relation among the number of behaviors,if they constitute the number of crimes,they should be punished in accordance with combined punishment for several offenses.ChapterⅣdiscusses the standard of absorptive relationship. This article holds that the judge is completed by two steps:the first step, judging a number of criminal acts have a typical following relationship or not according to the general experience, that is, the probabilistic relationship of experience; the second one, judging whether the integral facts can be evaluated consistently in accordance with inclusion of crime-constitutions.The typical following relationship of several crimes is the basis of such judgments, only with such a relationship are the number of crimes connected by the same criminal behavior or the same element so that these crimes exist linkage relationship. These crimes can be evaluated integrally according to the normative functions of crime-constitutions, that is, according to a crime to be punished mainly。So-called according to a main crime to evaluate is that the appraise is carryied on according to the most grave crime of all. Since only the most severe crime can appraise these crimes all-round and not let conductor gain unfair interests.ChapterⅤdiscusses the form of the absorptive relationship. It refers to the way of existence of absorbable offence. This article holds that the opinions of every description on the form of the absorptive relationship in China’s criminal law theory can all be summed up as grave crime absorbing minor one. Therefore,there is only one form of the form of the absorptive relationship, that is, grave crime absorbsing minor one. According to the sequence of the severity of these crimes,when the principle is been applied concretely,it manifests two different forms:the former crime absorbs the later one and the later crime absorbs the former one. This article holds that so long as do we make it as a core of grave crime absorbing minor one, supplemented by the former crime absorbing the later one and the later crime absorbing the former one, we can solve all the problems of absorbable offence, other absorptive forms are no meaningful.ChapterⅥdiscusses the relations of the absorbable offence and the implicated offense,the successive offense,the imaginative joinder offense and law coincidence. This article holds that the concept of the implicated offense should be abolished. After the abolition of it, the affairs which it is aimed at should be restored the truth separately: first, dealing with in accordance with the imaginative joinder offense, such as the situation of the implicated offense of method; second, dealing with in accordance with the absorbable offense, such as the situation of the implicated offense of result which has a typical following relationship; third is combined punishment for several offenses, such as the situation of the implicated offense of result which has no a typical following relationship. On the one hand it can make free criminal theory from how to discriminate between the implicated offense from the absorbable offence, avoiding unnecessary disputes, on the other hand,it is advantageous to discriminate one crime from several crimes. As for the successive offense, this article also maintains that it should be abolished, mainly because that China’s Criminal Law and Justice combined punishment for several offenses at the same kinds of crimes,therefore,it is no meaning to discriminate successive offense from non-successive offense in the same kinds of crimes. This article holds that law coincidence is that one behaviour accords with several penal codes in form, there is one criminal norm to be used finaly, however,other norms are rejected. This article holds that law coincidence has two forms:special relationship and complementary relation. Accordingly,it has two basic principles of application, namely, special law is superior to the common one, whole law is better than to additional one. In addition, the principle which severe law should be superior to the light one when the application of the principle of the two crimes should not be re-adapted to the application of proportionate punishment to crime and using severe law not inconsistent with the provisions of relevant laws.ChapterⅦrebuilt the system of the theory of plural crimes on the base of above studies. This article holds that the system of the theory of plural crimes can construct as follows:one crime:including a simple crime(continuous offense, law coincidence), essentially singular crime[the imaginative joinder offense(the imaginative joinder offense of not combining penalty)], practical-treated-one-crime[absorbable offence, the same kinds of crimes of not combining penalty, Xenogeneic crimes of not combining penalty(not belonging to absorbable offence)];several crimes:the same kinds of crimes, Xenogeneic crimes, the plural crimes of combining penalty, the plural crimes of not combining penalty etc.