| The implicated offense is an important crime form, it has always been attracted the attention in civil law and China’s criminal law theory. However, with study on the criminal law theory of the implicated offense, the implicated offender is questioned due to lack of reasonable basis which proposes that it should be abolished. In particular, China’s Taiwan region abolished the provision of the implicated offense in criminal law in 2005, which offers a legal ground for abolishing it in the criminal law theory objectively. However, as a phenomenon of crime, whether are there any reasonable substantial grounds for it? In fact, this is not the truth. The fact that the implicated offense should be abolished form criminal law theory lies in that is not so clearly defined for substance of implicated relations of several actions in traditional criminal law theory as to thinking this crime form has been come to blind alley.The article is focused on the implicated relations, which is the key problem of designating implicated offence, and by judging the form theory of different implicated relations among series actions of implicated offenses, points out that the essence of various forms of the implicated relations and makes the reflection and reconstruction on the conception of implicated relations. On the basis of it, the article discerns the substance of violating other crime names in implicated offense in order to providing the scientific standards and basis for the punishment principle of implicated offense.Besides the preface, this article is divided into seven chapters; overview of the implicated offense, theory on implicated relations, the distinguish with related scopes, judgment standard of implicated relations, criminal constitution and the implicated relations, implicated relations, crime number and the publishing principles of implicated offense. The summary of each part is as follows:Chapter I Summary of the Implicated OffenseIn this part, above all, the origin and evolution of implicated offense have been briefly described, pointing out that the phenomenon of the implicated offense in the theory of China’s Criminal Law is subject to the impact of the criminal law theory in Japan and old China. Believing that there is certain limitation in the study of the basic issues of the implicated offense in China’s Criminal Law, we can’t solve the plight existing in the theory of the phenomenon in the implicated offense. So far, due to the constraints of research approaches, the study of the implicated offense in the Criminal Law theory is mainly focused on:concept and characteristics of it, the criteria for judging of it, the office principle of it, the difference between it and related quantity of crime, as well as abolition and basic theory etc. However, the relative limitation of the study about asserting the key implicated relation of implicated offense mainly lies in equivalent implicated offense with the implicated relation, and equivalent implicated relation with it’s judging standard leading to that the essence including implicated relation among acts cannot be grasped. Thus, it is difficult to hold the point that there is no reasonable basis for the implicated offense. To sum up, the reason is that there is no a clear definition to solving the essence that the implicated relationship has different forms between the numbers of behavior in the implicated offense’s original problems. And there is no way to solving the embarrassing situation existing in the implicated offense. Therefore, only is grasped the substance of implication’ forms, the nature of implicated offense’quantity of crime is accurately identified.Chapter II The Theory on Implicated Relations.It is generally believed that the implication relation is the essential characteristic to identify implicated offender, at the same time, the theoretical disputes and confusion of the implicated offense are precisely from the implicated relationship. By the analysis and comb of the concept of implicated relationship in criminal law theory of Japan and China’s Taiwan region, as well as Chinese traditional criminal law theory, the article points out that the form of implicated relationship in criminal law theory of civil law is noticeably different from that of China’s. In China’s criminal law theory, there are also other forms of implicated relationship in addition to two basic forms, so it makes the forms of implicated relationship widening and leads to differences between implicated relationship and implicated offense both in intension and extension. As we all known, nature decides phenomenon, by analyzing the different forms of implicated relationship in criminal law theory, the article reveals that the essence is just the opposite. Therefore, the substance of the implicated relationship between different forms must be clarified, and reconstruct the concept of the relationship is also needed.Implication is that the relationship between the perpetrator of a crime committed for the purpose of, the implementation of a number of harmful behavior constitutes a crime, between the elements of objective behavior has the means and the purpose of the service between acts, the use of relations, as well as in various criminal Elements of the objective between acts causes and results have between acts of domination, control the relationship between course of conduct, at the same time, the complicated offense should be confined between method behavior and end behavior. The article summarizes two fundamental characteristics of the relations:First, it is characterized by the involvement of subjective intent; Second, the objective is characterized by the number of acts that has implicated the nature of the objective.Chapter III Distinction Between Implicated Relations and Related Fields.Quantity of Crime in theory has many disputes, in practice which is dealt with difference.Quantity of Crime exists complex relationships. Therefore, it need to distinguish among implicated offense, the concept of competing, absorbable offence and combined offense which are closely linked to Implicated Offense. First of all, We pointed out that the key to distinguish it from Implicated Offense on the basis of the basic theory of Imaginative Superposition Crime:On the one hand, whether the number of the results caused by behavior might be implicated in chronological order. If several hazards results caused by behavior simultaneously, it is the concept of competing. If the results of a number of hazards on the occurrence of a time sequence of cause and effect relationship, it was an Implicated Offense; On the other hand, considering the number of structures of the crime, if an act, resulting in a number of harmful results, belongs to the concept of competing; if a number of acts of harm caused a number of results, it is Implicated Offense..Secondly, the key to distinguish Implicated Offense and absorption committed:Implicated Offender behavior among a number of acts of the nature of heterogeneity, the heterogeneity of committing the offense, violations of heterogeneous objects and the object of crime committed several acts of sexual and absorption behavior between the homogeneity, homogeneity of committing offenses, Objects and criminal violations of the difference between the identity of the object. The dividing line between Implicated Offense and combinative crime should be limited to whether the law expressly provided, as well as the number of criminal purposes.Chapter IV The Criteria of The Implicated Relations.The criterion is the key to identify Implicated Offender, which is a theoretical consensus on criminal law. But through straightening out the criteria of the Implicated relations, we discover that it mainly has three kinds of views:subjective, objective, and a compromise, and in the objective existence the formation of a say and direct relations and common natures. A compromise that taking into account that there are two kinds of views.According to dialectical materialism, China’s criminal law theory emphasizes the unity of subjective and objective, and the criteria of the Implicated relations has several viewpoints,such as a unified intentions and causal relationships, the purpose of identity crime with a unified master-slave relationship, a compromise that constitute the elements of the crime,implicated in the normal way, implicated intention and common ways, implicated intention and direct relationship, and the object of a crime that with such coincidence. After assessment of these various points of view, we can find that:subjective is the scientific criteria for judging the implicated relations, then there exists a certain shortcomings and contradictions in other opinions. The subjective awareness of things that comply with the law of recognizing the things, which is found in the process of subjective and objective, is on the basis of taking full account of the objective dangers of the behavior, paying grater emphasis on the subjective aspects of human behavior only. Therefore, the subjective theory is truly implicated the principles that the unity of subjective and objective of the criteria of the Implicated relationsChapter v Criminal Composition and Implicated Relations.China’s criminal law theory holds that the act has a criminal composition, it has set up a crime; A number of criminal acts with implicated relations, to be the composition of the establishment of several crimes. Implicated relations with the number of acts, whether all the substance and form, which constitute several crimes, you need to right scientifically "the number of charges of committing" of the concept of Implicated Offense between the criminal constitutions. Implicated relations have different forms, criminal constitutions also has a real significant difference. In the case of "commit several offenses", which is between the approach behavior and the purpose behavior, the method of behavior is to achieve the purpose of the implementation the purpose of the perpetrator. Actors consider the method acts as a part of the behavior to implement. Therefore, the method of behavior will be included by committing the offense. In fact, the objective important document behavior that the method behavior offends is the preinstall of the criminal constitution that the goal behavior offends. When the author implements the method behavior, objectively the method of formation behavior and the goal behavior offends form of the number charge, but materially only will conform to a goal behavior crime constitution. Therefore, between the method behavior and the goal behavior implicates relational the essence is between several objective behaviors implicates the relations in a crime constitution important document. "Offends the number charge" between the reason behavior and the result behavior in the situation, reason behavior before, finally behavior, finally the behavior is to maintain the crime result which the reason behavior creates objectively to implement. The author implements the reason behavior the criminal intent which pursues its subjective crime content to complete, stemming from maintains the result behavior which the author reason behavior the crime result implements, then surpassed the criminal intent that the author to implement the reason behavior. So the essence that "offends the number charge" between the reason behavior and the result behavior, is crime constitution of the reason behavior and the result behavior not only conforms to in formally separately, but materially, the two also conform to several crime constitutions. Therefore, the essence of implicated relations between the reason behavior and the result behavior is the implicated relations between several different crime constitutions with objective behaviors.Chapter VI Implicated Relations and the Number of CrimeCombing the crime of Criminal Law Theory in civil law, the number of standards are: the theory of standard of means, the standards of conduct, the standard of the results a compromise, the causation standard, types of criminal penalty may be assessed that point of view, etc. The number of criteria, the standards of crime constitution, legal regulations, the charges of criminal constitution theory of criteria for judging the number of crime, but the application standard need for further specification in practice. The below views, the shortcomings and the abnormalities are obvious, could not reasonably determine the essence of actions with implicated relations. How to determine the number of crime with implicated relations, the fundamental factor is guilty. Therefore, the subjective guilty of people is the standard for the number of acts of crime with implicated relations. In a sin to be implemented under the control behavior, it is a crime which is supported by many sins to implement the act, and in a number of acts committed under the domination of sin is the number of criminal acts. Due to the various complicated relations, it is needed to analyze the situations respectively. Because of the method behavior and the purpose behavior with implicated relations is to be implemented under the control of one sin, so it constitutes a crime, and the reason of behavior and the results of behavior with implicated relations is dominated by the implementation of a number of sins, and therefore constitute several crimes. Other implicated relations in criminal theory belong to one sin or several sins by analysis, so it is reasonable to limit the scope of implicated offense between means behavior and end behavior. Chapter VII The Principle of Implicated Offender Penalties.How to judge Implicated Offender decides the survival of Implicated Offender. If Implicated Offense practices multiple crimes, there would be no Implicated Offender. In Chinese and foreign traditional criminal law theory, Implicated Offender’s Office is to implement "from a re-at fault" or "from a heavier weight" branch-off principle. Recently, under the impact of criminal legislation, in criminal law theory, implicated offense taken from a pattern of heavy penalties and multiple crimes. Implicated Offense is an objective existence of the number of patterns of the crime, In the Chinese criminal law theory, Implicated Offense has gone from subjectivism to objectivism, to the subjective process of change, Implicated Offense punishment has gone from an emphasis on the principle of punishment to multiple crimes to the main, to a severe punishment from the development process of co-existence with multiple crimes. Studying implicated relations and eventually to address the comments of implicated offender. We organize variety perspectives of the principle of punishment implicated offender on domestic and foreign criminal law theory, I found then lack of adequate theoretical support. Therefore, implicated offender’s office should follow the principle of seeking truth from facts, in accordance with the perpetrator of the crime number to identify, If the relationship involved a number of behavior is a sin to be implemented under control, we should start a re-at fault; If the relationship involved a number of behavior is dominated by the implementation of a number of sins, it should be multiple crimes, at the same time, the hazard results should be considered by the several behaviors when inflicting a heavier punishment on implicated offense for a serious crime. |
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