| It should be acknowledged that the current research in the criminal law theory community is not focused on the issue of the offense aggravated by circumstances.It can even be said that the study of the problem of the offense aggravated by circumstances is the "cold" field of current criminal law research.The academic circles are often only mentioned in the comparative analysis of the theory or the aggravated offense and other concepts.However,the significance of the aggravation of the crime cannot be negated,and the important value of the aggravation of the crime cannot be denied.In fact,there are a large number of cases in China's current Criminal Law that have serious plots(especially),bad plots(special),large amounts(special),serious results,primary elements,multiple times,special time,special places,etc.The provisions of the conditions are collectively referred to as plot aggravated offenders.Throughout the 470 crimes stipulated by the Criminal Law,315 of them were convicted.It can be seen that the aggravation of the plot is an important part of the criminal law in China,so it is also an important topic that can not be ignored in the study of criminal law theory.However,there are few studies on the issues related to the aggravation of the plot in China's criminal law,let alone the systematic study of the aggravated crimes in the criminal law.It may be that the lack of systematic research has led some scholars to raise questions and questions aboutthe “legitimateness” of aggravating the plot.The evaluation of the aggravated offense will directly affect the application of the relevant provisions of the current Criminal Law in China and the choice of future criminal legislation.Therefore,this thesis attempts to carry out some pioneering work,define the concept,scope and classification of the aggravated crimes in the criminal law,demonstrate the value of the aggravation of the plot,and analyze the structure and form of the aggravated offense.The legislative provisions on aggravated offenses are comprehensively sorted out,with a view to making it useful for the legislature to properly set up aggravated offenses and to aggravate the accuracy of the judicial authorities.This article is divided into two parts: the introduction and the body.According to the content layout,the body can be divided into the following seven parts.The first chapter mainly defines the concept,characteristics and scope of the plot aggravated offense,and subdivides its type.The aggravated offense refers to the criminal act committed by the perpetrator in the basic crimes,and because of the specific circumstances,the criminal law aggravates the type of crime that is punished.There are four typical characteristics of the aggravation of the plot under the legislative model of criminal law in China:(1)the dependency on the model,that is,the aggravation of the plot needs to be based on the establishment of the basic offense;(2)the independence of the "plot" Sexuality,that is,the "plot" in the aggravated offense is an additional evaluation factor that is independent of the basic offense.The plot does not affect the determination of the basic offender,otherwise it will easily lead to repeated evaluations that are not conducive to the defendant;(3)The legality of aggravating punishment,that is,the aggravating punishment must be clearly stipulated by law,and the judicial person may not discretion based on discretion.However,the so-called statutory nature only means that in the "aggregate" dimension,the provisions of the legislation form an absolute binding force on the judiciary,that is,the judiciary must not arbitrarily aggravate the punishment,does not mean that the final judgment must be "increased".Sentencing within the statutory sentence.In other words,this kind of statutory nature is not absolutely binding in the dimension of“mitigation”;(4)the diversity of the connotation of “plot”,that is,the “plot” ofaggravated episodes contains multiple evaluation factors such as subjective and objective.The range of "aggravation" covered is relatively wide.Objective factors such as subject identity,criminal means,number of crimes,time of crime,location of crime,amount of crime,object of crime,result of harm,etc.,subjective factors such as criminal motives,criminal purposes,etc.In addition to this,the elements of the plot are also aggravated and mitigated.Therefore,in judging whether the "severe circumstances are serious" or "the circumstances are particularly serious",not only must we focus on the aggravating factors,but also pay attention to whether there are mitigating or mitigating factors,thus achieving the comprehensiveness and objectivity of criminal evaluation.As far as the scope of the aggravated offense is concerned,the aggravating offence in the general sense of course includes the general situation.It should also include specific aggravation such as aggravation of the result and aggravation of the amount.The legislators have embodied this plot,which is an aggravating plot.The objective requirements of the statutory characteristics can also achieve a greater degree of clarity in the description of crimes,thereby reducing the ambiguity in the application of justice.In the general case,the basis for aggravating punishment is more diverse and cannot be completely replaced by results,amounts,and so on.According to different standards,different plot aggravation types can be divided.For example,according to whether the legislation expresses the specific plot as the standard,the plot aggravated offense can be divided into an abstract plot aggravated offense and a specific plot aggravated offense;according to the nature of the aggravating plot,the plot aggravated offense can be divided into a pure plot aggravation and impure The plot is aggravated.The so-called specific aggravated offense means that the criminal law expressly stipulates that the specific specific circumstances are used as aggravated offenses.In the current criminal law,there are mainly aggravating circumstances,behavioral aggravating circumstances,time and place type aggravation.The plot,the behavioral object type aggravating plot,the behavioral time type aggravating plot,the subject number type aggravating plot,the heterogeneous behavior incorporation type aggravating plot,the special purpose,themotivation type aggravating plot,and the like.In judicial practice,it is necessary to pay attention to judging the fact that the abstract elements are embodied in aggravated crimes.The behaviors prescribed by judicial interpretation are typical,but they are not completely excluded from other plot evaluation factors.In other words,when the amount,the number of times,etc.reach the relevant standards,it is not necessary to infer the establishment of the plot aggravated offense,but need to consider whether there is a lighter and lesser plot,in order to finally determine whether the plot is aggravated.The second chapter mainly expounds the value theory of the aggravated crimes by expounding the plot to aggravate the legislative value and judicial value of the legislation.As far as the legislative level is concerned,the value of the aggravated crime is reflected in the following five aspects.First,the setting of the aggravated offense is in line with the spirit and requirements of the basic principles of criminal law.Specifically,it is mainly reflected in two aspects: First,the penalty setting of the aggravated crime is the embodiment of the principle of a legally prescribed punishment for the crime;secondly,the legislative setting of the aggravated crime is to follow the principle of adapting the crime.Second,the setting of the aggravated crime is consistent with the guiding ideology of the Marxist concept of crime.The provisions of a large number of aggravated crimes in China's criminal law are determined by the criminal legislation of our country guided by the Marxist concept of crime and the unity of the "quality" and "quantity" of crime.Third,the setting of the aggravating crime is consistent with the basic links and background of the criminal law operation in China.The aggravation of the plot is a large number in the criminal law of our country,which is determined by the basic links and background of the operation of the criminal law in China.Fourth,the setting of the aggravating crime is consistent with the basic requirements of the theory of criminal law in China.The aggravation of the plot is a large number in the criminal law of our country,which is determined by the criminal constitution theory of China's criminal law.Fifth,the setting of the aggravated offense is consistent with the principle of criminal legislation."Legislative provisions cannot exhaust everything." Criminal legislation cannot stipulate complicated social phenomena and criminal acts in a timely manner.The fuzzy concept of "plot(special)serious" and "plot(special)bad" is applicable in criminal law.As far as the judicial level is concerned,the value of the aggravated crime is reflected in the following two aspects.First,it is conducive to limiting the discretion of the judiciary.The setting of aggravating composition is a reasonable restriction on the criminal discretion of judges.The reason is a reasonable restriction because it provides a clear unit of crime for the judicial personnel,and does not completely deny the discretion,that is,the criminal discretion is applicable within the statutory penalty range of each unit of crime,but not The provisions of the arbitrary transgression of criminal units shall apply to the aggravated statutory penalty.Second,it is conducive to adapting to complicated judicial practice.The reason why the plot aggravates the use of generalized and vague words such as "serious circumstances" and "bad plots" is to have certain flexibility in the face of ever-changing crimes that cannot be exhausted under the premise of a legally prescribed punishment for a crime.The third chapter mainly introduces the legislative evolution of the aggravated crimes,and comprehensively sorts out,summarizes and analyzes the legislative provisions on the aggravated crimes in the current criminal law.In the ancient Chinese criminal law,there were legislations involving "aggravated crimes",which can be traced back to the Xia Dynasty.The Tang Dynasty law has many applications,and it has continuously enriched the categories of aggravating punishments and improved the legislative model of aggravating punishment.The Song and Ming dynasties continued to follow the three generations.The legislative approach of the DPRK distinguishes different plots of similar crimes in order to achieve the purpose of punishing criminal acts of different levels of harm and maintaining social order.The 1979 Criminal Law's exploration of aggravated plots has the following characteristics: First,the legislative cases of aggravated crimes account for a large proportion of the Criminal Law's sub-rules;second,the aggravating circumstances of the aggravated crimes are diverse,among which The abstract plot aggravates themajority of crimes;the third is the pluralism of the legislative model of aggravating the plot.In general,the 1979 Criminal Law adopts a mixed legislative model of abstract and explicit.Specifically,the legislators use a variety of legislative techniques for the setting of aggravated offenses,using a single legislative model with aggravating circumstances,a side-by-side legislative model with two or more aggravating circumstances,and two mutual tolerances.The inclusive legislative model of aggravating circumstances.Through the legislative evolution of the aggravated crimes,the analysis and summarization of the plots aggravated the specific manifestations of criminals in different eras.It can be found that the aggravating crimes in the criminal law of our country are moving from less to more,from coarser to finer.The trend from simple to complex is constantly evolving.In the general provisions of the 1997 Criminal Law of China,there is no relevant provisions on aggravated offenses.The provisions of the current criminal law on aggravated offenses are mainly concentrated in the Criminal Law.There are mainly a single legislative model,an enumerated legislative model,and a mixed legislative model regarding the legislative model of the current criminal law aggravated crimes in China.The so-called single-legislation model means that when a legislator sets aggravated punishment for a specific crime,the use of a statutory penalty ascending case only corresponds to a legislative approach that aggravates the plot.For example,in the case of one of the 120 articles of the Criminal Law,there is only one statutory penalty for the promotion of terrorist activities.The corresponding aggravating circumstances are only one,which is “serious circumstances”;the illegal organization sells blood under Article 333,paragraph 1.The aggravating circumstances of the crime of sin and forced blood selling are only "forced to sell blood by violent or defamatory methods";although there are two aggravated punishments in the crime of imparting criminal methods as stipulated in Article 295,each aggravating punishment only corresponds to An aggravating episode,that is,"serious circumstances" and "the circumstances are particularly serious." Most of the criminal law in our country has adopted a single legislative model.According to the different categories of aggravating circumstances and the different levels of punishment,the singlelegislative model can be subdivided into an abstract single legislative model and a specific single legislation.There are three modes of mode and hybrid single legislative mode.The so-called enumerated legislative model refers to the fact that the plot aggravated crime contains two or more aggravating circumstances,and the plots are connected by "or" or in the form of "one of the following circumstances".Similar provisions in our criminal law have 58 laws and 69 crimes.There is generally a side-by-side relationship between two or more aggravating episodes in an enumerated episode.The so-called hybrid legislative model means that the aggravated offense usually has two or more penalties,and a single legislative mode or an enumerated legislative mode is adopted between different files.For example,the first episode of the crime of traffic accidents in Article 133 of the Criminal Law is “Escape after traffic accidents or other special serious circumstances”,and the second episode aggravated the plot as “death due to escape”.In the first episode of the crime,the enumerated legislative model,that is,the “escape after transportation accident” and“other particularly serious plots” have one of them,and will be subject to aggravated statutory punishment.The second-grade aggravating plot adopts a single legislative model.As long as it has the aggravating result of “death due to escape”,it will be subject to a more serious statutory penalty.There are also aggravated crimes in the criminal law of our country: Article 234 Intentional Injury,Article 240 Trafficking in Women,Child Crime,Article 347 Smuggling,Trafficking,Transportation,Drug Creation,Article 430 Military Defection.The fourth chapter explains and analyzes the specific composition of the aggravated crime.The aggravation of the plot consists of aggravating the foundation and aggravating the plot.It is a type of crime with overlapping plots.In the traditional aggravated theory system,the aggravating basis of the aggravated crime has been placed within the scope of basic crimes.This view has been unable to meet the needs of judicial practice and is not in line with criminal legislation practice.For the connotation of aggravating the aggravation of the plot,the criminal law scholars in China currently only pay attention to aggravating the basic legal characteristics.The author believes that only the basic characteristics of the legalcharacteristics are the following defects.First,there is not enough attention to the substantial connotation of the basis of aggravation.Second,it ignores the interrelationship between aggravating the foundation and aggravating the plot.The understanding of the aggravated sin,whether it is aggravating the foundation or aggravating the plot,should be combined with the concept of crime from the substantive and legal characteristics.On the one hand,from the perspective of the constitution of crime and the nature of crime,the basis of aggravation is a crime that conforms to the criminal composition of a lower-level crime and indicates that the behavior has serious social harmfulness.On the other hand,from the relationship between the aggravating basis and the aggravating circumstances,the aggravating foundation must have the sin of indicating the harmfulness of the independent society.For the scope of the aggravation base,in addition to the basic crimes,the aggravated offense and the facts or structural forms that meet the requirements of the criminal form can also be an aggravating basis.The basic crimes are mainly characterized by the following three aspects:(1)must be criminals stipulated in the criminal law;(2)must be punishable crimes;(3)only exist in cases where there is an aggravating circumstances.The provisions of the Criminal Law's rules on aggravating the foundation may exist in the behavioral offense,the offense,the dangerous offense and the result offense,but it does not necessarily represent the existence of aggravated offense in the relevant crime.Aggravated offenses can be an aggravating basis for multi-level aggravation.Only those plots that differ from the basic offenses in those constituent elements can be used as an aggravating basis for the next level of plot aggravation,because the difference in constituent elements means sin.The qualitative difference,the behavior of the lower-level statutory penalty has lost a unified basis for the aggravation of the high-level plot.In the form of the sin of aggravating the sin,both intentional and negligent can be the form of sin of aggravated sin.Aggravated behaviors include both acts and inactions;both single and compound behaviors.Whether the behavioral pattern of basic sin includes both defamatory behavior and attempted behavior should be discussed separately: the aggravating circumstances that coincide with the elements of the aggravating basic constituent elements,if notrealized,there is no possibility of applying the aggravating circumstances at all,and thus there is no room for discussion;Exceeding the fact that the aggravating basis constitutes the elements of the element,there is a situation in which the perpetrator implements a basic criminal act,although it does not fully meet the constituent elements of the basic offense,but there is aggravating circumstances.The aggravating circumstances mainly have the following four characteristics:(1)the aggravating circumstances transcend the legal constitutional conditions of the basic crimes;(2)the aggravating circumstances are attached to the basic crimes without their own independent criminal forms;(3)the aggravating circumstances are the basic criminal elements.The results of the natural development and extension of its elements;(4)The Criminal Law provides for a heavier statutory penalty that exceeds the basic composition.Aggravating the plot is the core difference between the plot aggravating and aggravating the foundation,and it is also the main reason for the aggravation of the statutory penalty.From the analysis of social harmfulness,the aggravating circumstances are the core elements that indicate that the plot aggravates the social harmfulness.From the analysis of the elements of the constituent elements,the aggravating circumstances are the founding elements of the aggravated crime.The sinful form of aggravating circumstances is mixed,but it does not violate the criminal law theory of unity and subjectivity,and it is also consistent with the requirements of criminal legislation practice.Starting from the specific content of the elements themselves,the aggravating circumstances can be divided into the following categories:(1)the amount plus the important elements;(2)the means and methods plus the important elements;(3)the time plus the important elements;(4)the place plus the important elements;(5)(6)the addition of important elements;(6)behavior plus important elements;(7)identity plus important elements;(8)special purpose plus important elements;(9)special motivation plus important elements;(10)heterogeneous behavior plus important elements;(11)abstract plot plus important elements;(12)comprehensive elements.There are essential differences between the rules of sentencing and the emphasis on aggravation,which is mainly reflected in the fact that the rules of sentencing and the aggravation constitute different origins,different classifications,and different effects.The legal nature of aggravating circumstances should be determined by the specific content of the aggravating circumstances.Not all aggravating circumstances can be used as conviction plots.Aggravating circumstances are not conviction plots of basic sins,but they may be aggravating elements,but there is no same plot.The conviction plot is again the possibility of a sentencing episode.The key to judging whether the aggravating circumstances belong to the aggravating constitutive elements or the sentencing circumstances is to determine whether the aggravating circumstances belong to the aggravating elements of the crime.Means,methods plus important elements,objects plus important elements,time plus important elements,place plus important elements,and special purpose plus important elements are all aggravating elements.The sentencing circumstances include the importance of identity plus the amount of illegal gains,the importance of the same kind of behavior,and the special motivation and importance.The content of the aggravating episode should be discussed in different situations: in the case of aggravated plots,the intentional offense of aggravated plots is only when the perpetrator has an understanding of the aggravated facts,and has a guilty of intentional aggravated offenses.In the case of possibility,the burden of aggravation can be assumed;the aggravating circumstances of the sentencing rules are not aggravated by the aggravating circumstances.From the perspective of social harm,the relationship between aggravating circumstances and aggravating the foundation is an enhanced and enhanced relationship.From the point of view of the elements of the elements,there is a coincidence between the aggravating plot and the aggravating basis,and there are parts beyond the scope.Aggravating circumstances can be transformed into an aggravating basis under certain conditions.It should be noted that the conversion from aggravating circumstances to aggravating the basis is a transformation to a higher level.The fifth chapter mainly discusses the relationship between the plot aggravating offense and the concepts of plot,plot offense,aggravated offense,aggravated offense,and combined offense.First,the scope of the use of "plots" in the field of criminal legislation in China isvery extensive.The role and status of the "plot" in the field of criminal justice in China is also very prominent,which is rare in criminal legislation and judicial practice in other countries of the world.There are different views on the specific meaning of the "plot" in the criminal circumstances of criminal law in China.Among them,the first viewpoint advocates the definition of "plot" in criminal law by enumeration;the second viewpoint advocates defining the "plot" in criminal law from the objective aspect of crime;the third viewpoint advocates defining "in the criminal law from the perspective of legality" The plot is the fourth viewpoint that defines the "plot" in the criminal law from the perspective of criminal policy;the fifth viewpoint advocates the definition of "plot" in the criminal law from the perspective of the elements of crime.To sum up,the "plot" in China's criminal law should refer to the provisions of the criminal law or based on criminal policy considerations,which have an impact on conviction,sentencing or execution,and reflect the social harmfulness of the behavior and the personal danger and extent of the perpetrator.Various subjective and objective facts.Secondly,as far as the relationship between the plot is aggravated and the plot offender is concerned,the plot of the plot is a specific situation that indicates the degree of legal infringement of the act and whether the act determines whether the act constitutes a crime,and is a conviction plot.The aggravating circumstances of the aggravated crimes belong to the sentencing circumstances that can only affect the discretion of the penalty,and cannot be included in the plot of the plot.Therefore,the aggravation of the plot is not a plot crime.The two are mutually exclusive parallel relations.In other words,the aggravating circumstances of the aggravating episode can only objectively represent the degree of personal danger of the actor,or objectively reflect the change in the degree of the infringement of the legal benefit,but not the type change of the behavior.These aggravating circumstances cannot Separately determining whether a crime is established or not is not a conviction plot and cannot be used as a criterion for distinguishing between crime and non-crime,and thus is of course not a plot of the plot.Thirdly,in terms of the relationship between the aggravated offense and theaggravated offense,both the meaning of the word and the characteristics of the crime can be used to add the result to the aggravated offense,that is,the result is aggravated.A type of aggravation of the plot.On the one hand,from the point of view of the meaning of words,the "results" belong to the category of "plots" in a broad sense.On the other hand,from the perspective of the characteristics of crime composition,the aggravated offense and the aggravated offense have the same criminal composition,which refers to the implementation of certain criminal acts stipulated in the Criminal Law,due to the aggravating constitution,in accordance with the law The crime is convicted but the punishment must be aggravated.Therefore,the result of aggravating the offense is actually a type of aggravated offense.The reasons are mainly as follows:First,the aggravated offense and the aggravated offense are both composed of basic crimes and aggravated crimes.The composition is composed of two parts.Secondly,the aggravating factors in the aggravated offense and the aggravated offense are beyond the basic crimes.Third,the aggravating factors in the aggravated offense and the aggravated offense are clearly stipulated by the law and have certain clarity.Fourthly,the aggravating factors in the aggravated offense and the aggravated offense are diverse;fifthly,the aggravated offense and the aggravated offense are aggravated by the aggravating factors beyond the basic criminal composition.Fourthly,as far as the relationship between the aggravated offense and the aggravated offense is concerned,the "plot" in the aggravated crime refers to all the situations and links in the whole crime process,and the amount is obviously a concrete manifestation of the plot in a broad sense.Therefore,it is entirely possible to discuss the aggravated aggravation in the context of aggravated crimes,without the need to separately constitute it as an aggravating crime.Of course,although the amount of aggravated offense is a type of aggravated offense,the amount of aggravated "amount" plot has some special features.First of all,the "amount" plot is a single objective aggravating factor,and the plot of the aggravated "plot" is an abstract comprehensive indicator.Second,the “amount” plot is sometimes tied to other aggravating circumstances in a section of aggravating circumstances.Fifthly,in terms of the relationship between the aggravated offense and thecombined crime,although the aggravated offense and the combined criminal have some common features in terms of statutory and legislative purposes,there are essential differences between the two in terms of the composition of the crime.There can be no cross or affiliation.First of all,the plot aggravated only one basic criminal act,which is a substantive sin,and the combination of several original criminal acts that are independent of each other is a legal sin of a few crimes.If the perpetrator implements a basic criminal act and implements an act that conforms to the elements of other crimes,it is a combination of nature and no longer belongs to the category of aggravated offense.Secondly,the aggravated offense can only be convicted of a basic offense,and the penalty is imposed by the aggravated penalty set by the criminal law,while the combined offender should be convicted and sentenced according to the criminal law and the principle of punishment.The sixth chapter is about aggravating the morphological theory.It mainly discusses three aspects.One is whether the plot aggravates the crime and whether there is a problem of how to define it.The second is the relationship between the aggravated crime and the form of crime.The third is the plot.Aggravated accomplice form.As far as the continuation of the plot is aggravated,the criminal law theory has not reached a consensus on the issue of the attempted aggravation.There are mainly four different viewpoints,namely,complete affirmation,complete negation,substantive negation and eclecticism.The author believes that whether the plot aggravated the existence of unfinished form needs to be judged in combination with the criminal morphological theory and the aggravated crime composition.In this regard,the aggravated offense should have an attempted crime.But not all types of plots are aggravated.First of all,it is conducive to the fact that the aggravation of the crime is conducive to the realization of the crime and the punishment.Secondly,it is not inconsistent with the theory that the crime is aggravated by the fact that the crime is aggravated.Finally,it is also a need for criminal justice practice to admit that the attempt to aggravate the crime is more in line with the original legislative intent of our country,in line with the intrinsic value pursuit of the attempted system,andcomprehensively evaluate the criminal composition of the aggravated crime.However,the author believes that the scope of the aggravation pattern should be limited.On the one hand,in the case of basic offenses,it should be limited to the scope of direct intentional crimes.Negligent crimes and indirect intentional crimes are subjectively lacking direct criminal intent.And the occurrence of statutory consequences is a constituent element,there is no problem of the cessation of crime;on the other hand,the nature of the aggravating circumstances should be distinguished,because the aggravation of the nature and status of the aggravating circumstances is a matter of judging whether the plot is aggravated key.Regarding the criteria for differentiation,the author believes that a compromise should be used.In this regard,there is a possibility that the intentional crime with aggravated constitution has an unfinished form.There are three main types of unsuccessful plots.The first is that the basic offense is aggravated by the crime of negligence,and the other is the fault of the aggravating result.The sinful aggravation is aggravated,and the third is the result of the harm of the basic guilt and the aggravating result invading the same object and the two results are aggravated by the same summary.The aggravation of the plot is divided into three stages: the determination of whether the facts of the crime are consistent with the composition of the aggravated offense;the determination of whether the facts of the crime are in line with the attempted form of aggravated offense;the determination of the facts of the crime is in line with the fact that the circumstances of the crime are aggravated situation.An aggravated offender has no attempt only under the same general intention: in the case where the deliberate scope of the perpetrator cannot be determined,the judiciary may determine the crime according to the amount actually obtained;when the evidence in the case can be locked in its intentional scope,the amount is reached.If the criminal prosecution standard can be handled as an attempted crime,and the amount does not meet the criminal prosecution standard,administrative punishment may be imposed according to the circumstances.This kind of treatment will not impact the current sys... |
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