| As a penal discretion system which is arising along with the emergence of crime,combined punishment for several crimes has a long history and can not be avoided in judicial practice.In the general provisions from Article 69 to 71 of Criminal Law in China,there are three kinds of the system of combined punishment for several crimes:ordinary crimes,missed crimes and new crimes.Each situation sets different combined punishment method,including absorption,merger and limitative aggravation principles.Based on regulations about how to punish a person who commits several crimes in other countries all over the world,some countries in the common law system adopt a single principle of summing up,that is,strictly follow the principle adapting crimes and punishments,and adding up the sentences of crimes simply,which can be described as the punishment of several crimes rather than the combined punishment for several crimes together.However,in China,the legislation has broken through the principle of adapting crimes and punishments to some extent.The crimes are punished according to the methods of absorption,merger or limitative aggravation.The final execution period of the perpetrator is often shorter than the sum of their sentences.The majority countries in the world also use three methods mentioned above for the combination of several crimes.So the system of combined punishment for several crimes is an important topic that can not be ignored in the study of criminal law theory and legal practice.The legislative model of criminal punishment for several crimes in our country's criminal law also puts forward the task for the theory ofcriminal law.Based on a large number of cases in judicial practice,this paper studies the system of combined punishment for several crimes in order to facilitate the legal application.By studying relevant papers on the system of combined punishment for several crimes,the author has learned that although there are legislative provisions on the punishment for several crimes in foreign criminal laws,almost all of them simply add up the punishment of several crimes together to execute the punishment,and there are few special papers about it in foreign criminal law theory.The appearance of the system of combined punishment for several crimes in China is accompanied by crimes.At present,scholars in China have made extensive studies on combined punishment for several crimes,including the concept and type,the application of different types of punishment in the combination of several crimes,and the overlapping application of combined punishment system of several crimes with other penalty systems.Among them,the representative book is The theory of combined punishment of several crimes published in 2011(written by Wu Ping),which introduces the history of the system of combined punishment at home and abroad,and discusses the applicable rules of combined punishment for several crimes from three aspects: types of punishment,types of combined punishment for several crimes and other penalty systems,and it puts forward relevant suggestions for improvement.The application and comparison of the combination of several crimes published in 2012(written by Meng Qinghua)has carried out a more comprehensive exposition from the following aspects: theoretical exploration of judicial punishment of several crimes,judicial guidance and legislative reference,which is not only for the system of combined punishment for several crimes in China,but also analyzes the legislative overview and judicial interpretation in terms of academics.It also introduces legislative provisions on the combination of crimes and punishments both in ancient and modern China as well as foreign countries,and grasps the ins and outs of the system of several crimes and punishments.The representative essay is Zhang Mingkai's New Issues on the Combination of Several Crimes-The Application of Article 4 of the Criminal Law Amendment(IX),which was published in the Legal Review in 2016.Based on Section 2 of Article 69 in the Criminal Law,supplemented by Article 4 of the Criminal Law Amendment(IX),the essay analyzes the principle of combined punishment for criminal detention,control(public surveillance)and fixed-term imprisonment,and imposes severalsentences on the penalty and sentence.Because the application of discounts,recidivism,deprivation of political rights,and probation and parole has led to many new problems,experts and scholars are called upon to conduct in-depth research and proper handling.Based on the existing research results,the author tries to elaborate the concept,characteristics and theoretical basis of the system of combined punishment for several crimes,its application scope and principle,and the problems existing in the cross-application of judicial practice with other criminal punishment systems,hoping to put forward suggestions on the improvement of its legislative model.This article is divided into four chapters with 170,000 words.The introduction part explains the background of the topic selection,and gives a general introduction to the content of the research.The first and second chapter introduces the concept,characteristics and theoretical basis of the system of combined punishment for several crimes,and emphatically discusses the value.The third and the fourth chapter are the mainstays of this paper,which are divided into punishment of several crimes from different kinds of punishments and execution of the penalty aspects.In the conclusion part,the paper analyzes and summarizes the incompleteness of the previous legislation,pointing out the improvement direction of the system of combined punishment for several crimes.The first chapter is the ontology of the combination punishment for several crimes.It is an important system in the theory of criminal law and the practice of criminal justice in China.As the premise of studying the system of combined punishment of several crimes,grasping the concept,characteristics,theoretical basis,application scope and principle of combined punishment for several crimes is relatively important.This chapter mainly introduces the concept,characteristics,theoretical basis,applicable scope and principle of the combined punishment system for several crimes.With regard to the definition of the system of combined punishment for several crimes,there are many explanations in the theoretical circle of criminal law.The author lists them one by one and classifies them.According to the statutory penalty rules,the system of combined punishment for several crimes refers to the criminal disciplinary system in which the court determines the number of crimes that should be imposed before the execution of the penalty and is discovered by the judicial organ,and the penalty is determined.It has three characteristics:factuality,timeliness and legality.In addition,the academic circle has differentopinions on the theoretical basis of the combination punishment for several crimes.With thorough understanding the theoretical basis of the combination punishment system for several crimes,we can have a deeper understanding of the significance of establishing the joint punishment system of several crimes in the criminal law.The theoretical basis of the system of combined punishment for several crimes is neither based on the theory of criminal punishment,justice,retribution,utilitarianism,nor personality absorption theory,but the theory of judicial economy and the theory of penalty.The scope of application is in the period from the declaration of judgment to the completion of penalty execution.There are three legislative models in the world:judgment declaratoryism,judgment-determinationism and unfinished penalty,and unfinished penalty is adopted in China.Finally,the applicable principles of the system of combined punishment for several crimes include the principle of absorption,merger and limitative aggravation,which are defined and evaluated in practice,helping us to understand and analyze the practical problems and improvement direction of the system from different perspectives.The third chapter discusses the types of punishment applied with the combined punishment system for several crimes.The combined punishment system for several crimes is a kind of punishment discretion system.Different principles of concurrent punishments should be applied to different types of punishment.How to absorb,merge and limit three kinds of the principle of penalties flexibly is worth exploring.This chapter mainly clarifies the application of the number of penalties and punishment system in different circumstances,including death penalty,life imprisonment,fixed-term imprisonment and supplementary punishment as well as principles of the application.Generally,the principle of absorption is adopted when the crime of several crimes includes the death penalty and the life imprisonment.Can the two death sentences be suspended and can be upgraded to the death penalty for immediate execution? Has it broken through the upper limit of the application of the principle of absorption of combined punishment of death penalty? This article explores the application of life imprisonment in such situations,which can be called a special principle of limiting aggravation principle.According to the Criminal Law Amendment(IX),several crimes include concurrent imprisonment,criminal detention,and control are determined that the principle of imprisonment for fixed-term imprisonment and criminal detention.The combined punishment of fixed-term imprisonment,criminal detention andcontrol(public surveillance)included in several crimes is determined to be the absorption principle of the combined punishment of fixed-term imprisonment and criminal detention through the amendment to the criminal law(IX),and the combined application principle of the combined punishment of fixed-term imprisonment and control(public surveillance)is expounded in view of the problems arising from the above provisions in judicial practice.Explain the problems arising from judicial practice;interpret and evaluate the principle of the use of additional punishments in the crimes of the Criminal Law Amendment(VIII),and the “same kind” in the rules of joint punishment between additional sentences.How to understand the rules of "the same kind","merger execution" ? And the paper puts forward corresponding improvement paths for the same kind of additional penalty,heterogeneous additional penalty and the combined punishment between the additional penalty and the main penalty.The clarification of the above problems can not only help us clearly define the specific application of the combined punishment system for several crimes,but also promote the in-depth theoretical research of the combined punishment system for several crimes,which is of great significance to both criminal justice and criminal legislation.The fourth chapter is about the relationship between the system of combined punishment for several crimes and other penalty systems.As a penalty discretion system,the system of combined punishment for several crimes will inevitably cross the application of other penalty systems when applied.The recidivism system,probation system,commutation system and parole system in China's criminal law all have a relationship with the system of combined punishment for several crimes.Does the system of combined punishment for several crimes and the system of recidivism have the same understanding of "the completion of penalty execution" ? In the system of combined punishment for several crimes and the system of recidivism,there is a statement that “the execution of punishment is completed”,so the system of combined punishment for several crimes and the system of recidivism should be completely separate applied in the same timeline.Can probation be applied again when the combined punishment system for several crimes is applied to the combined punishment for omissions or new crimes? This paper holds that as long as the combined punishment still meets the conditions for the application of probation,then the combined punishment can still be applied to probation.How to apply thecombined punishment system of omission or new crime after commutation? The omission or new crime shall be combined with the original crime after the reduction of the sentence is revoked.How should we combine principal and supplementary punishment during parole and after revocation of parole? How should we calculate the jail term that already experienced? The above problems are analyzed and expounded in this chapter.Recalling the amendments to the Criminal Law Amendment(VIII)and the Criminal Law Amendment(IX)on the system of combined punishment for several crimes,the specific theories and practical issues concerning the system of combined punishment for several crimes proposed in Chapters 2 and 3,the author gives the suggestions on how to perfect the legislation: Firstly,in the general principles of criminal law,the concept of the system of combined punishment for crimes is defined accurately,while the principle of mutual punishment is generally defined.Secondly,through the amendments and judicial interpretations,penalties are stipulated for different types of punishment and cross application with other penalty systems.Finally,the defects of the combined punishment system for several crimes in judicial application mainly include the pluralism of the subject of interpretation and the arbitrariness of interpretation.Judicial practice should grasp the principle of restricting the pluralism of the subject,strengthen the legislative interpretation,and leave the judiciary with sufficient discretion.This paper adopts the methods of comprehensive induction,comparative analysis,theory with practice,and analyzes the system of criminal punishment of numbers and crimes in theory and practice.In the article conclusion part,the author summarizes the system of combined punishment for several crimes in China and points out that legislation needs to be improved,hoping that the blind spots and shortcomings of the existence of the system of justice and punishment in China will be filled and amended through the provisions of criminal legislation,which can help the study of the system of combined punishment for several crimes in China. |
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