The Research On Implicated Offense

Implicated offense is an important form of crime which belongs to one crime in punishment,there are some important theoretic significances and practical values to reseach it.This article has made systematic analyse and dicussion,it has initially built theoretic system of implicated offense which is suited to our country.Besides of foreword,This article includs five chapter.The foreword mainly expounds the background of choosing topic,the internal and external trends of research and the research significance of this article.Firstly,it points out that though implicated offense is an objective phenomenon,it is not stipuded definitly in the penal code of our country.The futhure research should be carried out on the problem such as the theoretic source of production,the sense of the number of crime, its concept,the necessary of existing,feature,its application in the penal judicature,ect.The academic circles has not attached enough importance to the research of implicated offense,and has an trend of separating from the reality of our country.The author has made thorough research on the theory of implicated offense on the basis of comparing analysis the internal and external theory,the practice of legislation and judicature.Chapter One is about the essence of implicated offense.The emphasis of this chapter is the anaysis on the basic principle,the criterion,the fundament of the number of crimes,the style of single crime and the essence of implicated offense.First,the author expound that there are two basics principle of judging the number of the crimes,one is the principle of full evaluation,the other is the principle of the forbiding of repeating evaluation.Second,the anaysis is carried out on the criterion of the number of cimes,the author points out that the criterion of the number of cimes is only one,and it should be implemented throughout the course of the dividing of cimes.The criterion is the theroy of crime constitution theory,but the scholar of our country often depart from this theory while judging the action is one cime or several crime.Then the author put forward the criterion and the fundament of the number of crimes should be devided.Third,throughout anaysising,the author draw a conclusion that implicated offense is plural crimes not only in form but also in essence.Chapter two is about the existing and abloish of implicated offense.There is hot debating about this question.Mang scholar think that it is a world trend to abloish the concept of implicated offense,also,it is hard to distict implicated offense from other style of quantity of crimes,so they strongly suggest that the concept of implicated offense should be abolished in China.The author ristly collect and arrange the formulation about implicated offense and its similar concept in legislation judicial interpretation in many countries and areas,expound that it is a objective phenomenon for the exsiting of implicated offense,and build afoundation to futhure expound its concept and characters in the following.Then the author sums up and analysises contrastly the theories of the retaining and abloishing implicated offense in all the countries and areas,and insists the concept of implicated offense shoud be retained on the basis of joining the reality of our country.The reasons of retaining are from different aspects. The theory reason is from the valuation of subjectivism,the substancial reason is from the origin of implicated offense and the need of lightening penal,the reason of crimnal prosecution is that retaining implicated offense will not lead to the malpractices that have appeared in the countries and areas of continental law system.Charpter Three expounds the notion,feature and style of implicated offense.On the base of analysing contrastly the internal and external notion and feature of implicated offense,the author gives his notion of implicated offense,that is,it means that the actor’ final aim is to commit one kind of crime,but his action of measure or result has commit other kind of crime.Implicated offense has the following features,firstly,it has more than two criminal action which can be devidided into original crime and other crime.Secondly,there is implicated relationship between original crime and other crime,and its standard depends on two factors,one is implicted intention on subjective aspect,the other is causation on objective aspect.Thirdly,the several actions of implicated offense should be commit diffrent crimes.Fourthly,there is principal and subordinate relationship among the several actions of implicated offense.Fifthly,there is no crossing relationship among the objective constitive conditions of the original crime and other crime.As to the styles of implicated relationship,accordind to the attribute of relations, they can be devided into method implicated offense,result implicated offense and triple implicated offense made up by the fromer two.Accrding to the complicated degree of implicated relationship,they can be devided into simple implicated offense and complicated implicated offense.According to the principle of punishment,they can be devided into legal implicated offense and theoretical implicated offense.Cpapter Four is about the application of implicated offense.Section One researches how to distinguish graver crime and lightening crime of implicated offense at first,especially when there is a aggravative or lightening plot of recidivism, accessory,ect.Then the author proves the necssary of citing the charge and regulation of lightening crime.Section Two researches the penalty of implicated offense.First,the author sums up and analysises contrastly the legislative and judicial interpretation stipulation of implicated offense in all the countries and areas,on the basis of our reality and priciple of full evaluation and principle of the forbiding of repeating evaluation,puts forward that in our country the priciple of "choice the most serious offense and the most severe punishmenf"shoud be applied to.Section Three reseaches the notion,featrue,priciple of punishment and styles of the coinciding between implicated offense and jiont crimes (co-pricipal offender, abettor,accessory).Section Four reseaches surrender.On this question,there are three different advocations. The theory of lenient treatment holds that if plead a party of guilt stictly according to the facts,then all the implicated offense can be conisded as surrender.On the contrary,the theory of strict treatment deems that if only plead a party of guilt stictly according to the facts,the whole implicated offense cann’t be conisded as surrender.The theory of distinguish suggests that if the law stipulates in explict terms combined punishment should be imposed on them,the actor confess the main factors of one crime,then only this crime is surrender,the other cimes cann’t be taken as surrender.If the law stipulates in explict terms the case should be severely punished in accordance with the crime which is graver,the actor confess the main factors of one crime,then the orher cimes canbe taken as surrender.The author insists the theory of strict treatment on this problem after analysising the legislative purpose of surrender,the pricipal of suiting punishment to crime and the operability ect.Section Four researches the accessory punishment and limitation of action of implicated offense,the relation between implicated offense and inchoate cime,the effect to the other crimes when part of crimes are prosecuted,withdrawed charges,lodged an appeal or counter appeal,Res judicata of implicated offense,the dealing means of acrossing the period of new law and old law of implicated offense.Charpter Five is about implicated offense and other quantities of crime.The emphasis of this charpter is the researching of the relationship between implicated offense and imaginative superposition crime and joint crime.Implicated offense and imaginative superposition crime both commit several crimes,often have several cimnal intent or negligence and results,the means of action and results of action in implicated offense are apt to confuse with the means and results of crime in imaginative superposition crime.The most notable distinguish is that implicated offense has several indepent crimes and it is one crime in nature while imaginative superposition crime only has one crime and it is one crime in nature. Absorbable offense is also one crime in punishment.When several crimes have inevitable logical relation,they are absorbable offense.When several crimes have not inevitable logical relation,they are implicated offense.In this charpter.The author also researches the contaction and distinguishment between implicated offense and joint offense,continuing offence and aggravated consquential offence.