A Research On Combined Offence In Chinese Criminal Law

The quantity of crime has long been one of the most important questions in traditional Chinese criminal theory, and combined offence has been one of the significant concepts among studies of quantity of crime. However, the understanding of combined offence does not achieve common view in either academic theory or judicial practice. Under such circumstances, a deep research in questions of combined offence is extremely meaningful in theoretical and practical aspects. There are two main parts in this article, which is the introduction and the main body. The main body is divided into six chapters, among which General Provisions of Chinese Criminal Code are discussed from Chapter One to Chapter Five, while questions of Crimes of Chinese Criminal Code are discussed in Chapter Six in order to recognize and organize provisions involving combined offence in the criminal code to help judicial practice.The Introduction involves three questions. First, it is demonstrated what the goal and value of this research is and why the aspect of judicial practice is specifically chosen to discuss questions of combined offence. Second, the present situation of research on combined offence is described and criticized, and the breakthrough of this article is explained. Thirdly, the hope to help solving specific questions in judicial practice is expressed.Chapter One is divided to three parts. Part One focuses on the definition and characteristics of combined offence, which acts as the logistic beginning of this article. As for definition, the definition of combined offence in general theory is criticized because it is in lack of reasonable goals, in lack of legality and not simplified enough. In this article, it is corrected into “several crimes which are originally independent and different in characteristics combined to one specific crime according to explicit provisions in criminal law”. As for characteristics, it is summed up that, on the ground of the corrected definition, a combined offence should be legally regulated, independent and substantively different in crime patterns. Part Two is an introduction of theory of combined offence in foreign countries including Germany, Italy, French, Japan and Chinese Taiwan, in order to clarify how criminal theories of continental legal family place combined offence into the theory of quantity of crime. The deficiencies of our general theory is demonstrated through comparative research, and this article furthers the research in such background. Moreover, legislation about consequential aggregated offence and circumstantial aggravated offence is discussed along with the discussion of combined offence, so as to find the relation among the three concepts. Part Three stresses on the value of combined offence in academic theory and legislative practice to give this research theoretical and practical supports. There are mainly three theoretical points: first, it is important in criminal theory; second, it is the requirement of the principle of legality; last, it serves as a restriction to subjective judgement of judicial functionaries. Meanwhile, there are two practical points: as for substantive justice, it can give punishment to those offences that do serious harm to the society; as for procedural justice, it can help achieve the effectiveness of criminal procedure.Chapter Two is divided into two parts. This chapter discusses standards of divisions of combined offence to help the research of questions in Crimes of Chinese Criminal Code systematically. In Part One, the theoretical types of combined offence are divided by four standards. First, according to difference in the ranges of definitions, there is combined offence in broad sense and in narrow sense, and the former one includes the latter as well as consequential and circumstantial aggravated offence. Second, according to the compliance to traditional definition, there is typical combined offence and non-typical combined offence. Third, based on whether explicitly stipulated in the criminal code, there are formalized and substantive combined offence, and it should be emphasized that substantive combined offence is not combined offence at all. Other standards focus on a more microscopic level, including combination of offence of intention and offence of negligence, of commission of real act and omission, of offence of simple act and offence of consequence, of offence of actual harm and offence of danger, of offence of single action and offence of several actions, and so on. As for the determination of combination of commission and omission, it is discussed that how to differentiate combined crime from single crime, involving the question whether prior conduct includes the criminal conduct. This article holds the view that it should be discussed dialectically, that prior conduct undoubtedly includes criminal conduct, but not inevitably gives rise to duty to act. Part Two is an introduction of legislative types of combined crime in China. In criminal theory, main types of combined offence include combined offence of means-purpose relation, of simultaneity, of containment, and of causality. Combined offence of simultaneity belongs to the same group with combined offence of containment in Japanese legislation. Combined offence of causality is in fact consequential aggravated offence, which is different in crime pattern from combined offence in our country. Besides, provisions of “causing serious hurt or death” and so on can be either consequential aggravated offence or combined offence. Such types include offences regulated in Article 121 of Criminal Code(hijacking aircraft with violence or menace causing serious injury or death of human being or serious damage to the aircraft), Article 236.1.5(raping or having sexual intercourse with young girls and causing serious injury or other serious consequences), and Article 263.1.5(robbing causing serious injury or death).Chapter Three is the deconstruction of the concept of combined offence. The concept is deconstructed according to the four elements of crime constitution. Part One is the research on object of combined offence, in which the harmed object and the basis of serious punishment are explained. Part Two is the research on objective aspect of combined offence from the aspects of harmful act, harmful consequence, causation, time and place of commission, and means of crime. First, as for harmful act, questions of the form of combination of original offences, the relation between original offences and combined offence, time interval and distance of original crimes, and prescription of indictment are discussed. Second, as for causation, the judging standard and relative difficult questions of combined offence are researched. Judging standard involves interruptive conduct and the suspension of causation. The so-called relative difficult questions include chasing question, characteristics of the aggrieved party and certain environment, interruptive conduct of third person, and so on. Last, as for other objective aspect elements like time, place and means of crime are sometimes still requisite elements. Part Three is the research on subject of combined offence, especially discussing whether a subject can legally become the accused. As for natural person as the subject, the research focuses on the determination under single or interactive condition. As for unit as the subject, how to determine combined offence conducted by unit is important. Part Four is research on subjective aspect of combined offence, involving the relation between original offences and combined offence, as well as the types of combination among original offences. First, the relation between original offences should be discussed separately. For the means-purpose combined offence, it is a combination of the act as means and the act as purpose, so there is undoubtedly a combination between the offenses and awareness of the “criminal conduct as a whole” mast have already existed. On the other hand, for simultaneous combined offence, it is hard to say whether there is inevitable relation among several offences, so such circumstances can possibly exist that the intent of another offence is arose afterwards. Next, theoretically speaking, the patterns of liabilities of combined offence include intention with intention, intention with negligence, and negligence with negligence.Chapter Four is the relative questions dealing with combined offence under discussion of quantity of crime. This chapter contains three parts. Part One answers the question that how to distinguish combined offence from other types of offences concerning quantity of crime. In this article, it is forwarded that offences concerning quantity of crime should be divided into two groups, either statutory or non-statutory, and arrange all offences concerning quantity of crime into this division, in order to distinguish combined offence from those non-statutory offences concerning quantity of crime and other statutory ones. Part Two answers the question that how to distinguish combined offence from legal fiction and reminding clauses. Part Three is the research on combined offence and combined punishment of several offences. First, it is elaborated that how to determine quantity competition of combined offence and combined punishment, and the key point is to clarify the definitions of “quantity of crime” and “combined punishment” and their positions in the theoretical system. Then, there is the research of quantity competition of combined offence and combined punishment involving single competition or interactive competition of combined offence.Chapter Five is the research on combined offence and its pattern of crime. This chapter contains two parts. Part One is about the accomplished and unaccomplished pattern of combined offence. As for accomplished offence, the standard of accomplishment is discussed and the present theories are criticized. This article holds the view that although combined offence is the combination of the basic perpetration and the combined perpetration, the latter is the key point to determine the crime, so it is better to determine the accomplishment when the combined perpetration is accomplished. As for unaccomplished offence including preparation, suspension and uncommission of combined offence, the determining standard should be the combined perpetration. Because the suspension of combined offence is the suspension of the combined perpetration, it is hard to apply Article 24.2 of Criminal Code, which is the exemption of punishment for suspensive offender who have not caused any harm. Part Two is the pattern of joint crime, including the elements required and the types of joint commission of combined offence. As for the elements required, the subjects should be no less than two persons, the subjective aspect should have contact of crime on the combined offence, and the objective aspect should be the conduct of joint commission. In this article, legal effect of single consummated offender and suspension of some of the participants is discussed. As for types of joint offenders, the research includes main offenders, secondary offenders, threatened secondary offenders, offenders accused for incitement, joint offenders participating halfway, and partial joint offenders. As for main offenders, relation between main offenders and first perpetrators are discussed. As for threatened secondary offenders, the research relates to the situations appeared in judicial practice and corresponding questions like regulation of sentencing, suspension, urgent danger prevention and excessive danger prevention. Research on incitement of combined offence mainly deals with unattempted incitement and unattempted incited offence. Research on halfway participation of joint offence mainly focuses on the scope of liability. As for partial joint offence, the differences among halfway-participating consummated offender, partial consummated offender and indirect principle are told in detail.Chapter Six is the specific regulations of Chinese criminal law about combined offence. This chapter contains two parts, based on the research of Chapter One to Chapter Five, in order to solve the difficult questions in judicial practice. Part One is an overview of crimes and their characteristics of combined offence in Chinese Criminal Code. Part Two is a compiling work of combined offences according to the standard of means-purpose type and simultaneous type. As for means-purpose type, there are: combined offence based on hijacking an aircraft, armed smuggling, counterfeiting money, unlawfully and dishonestly purchasing foreign currency, stealing, falsely issuing exclusive added-value tax invoices, selling forged exclusive added-value tax invoices, issuing forged document as evidence, raping, abducting and trafficking women and children, robbing, organizing people to secretly cross the national boundary, transporting people secretly across the national boundary, robbing ancient cultural ruins and ancient tomb burial objects, smuggling or trafficking or transporting or manufacturing drugs, illegally growing plants used to extract drugs, organizing the broadcasting of obscene motion audio and video, obstructing military actions by armed forces, and so on. As for simultaneous types, there are: plotting to split the country, instigating to split the country, armed rebellion, armed riot, subverting the political power of the state, instigating to subvert the political power of the state, traffic laws violation giving rise to great harms, kidnapping, abducting and trafficking women and children, robbing ancient cultural ruins and ancient tomb burial objects, creating rumors to make panic in time of war, and so on.