Research On The Criminal Punishment To The Related-crime After The Accomplished Offense

The study of whether to punish related crimesis based on the relation between the former crime and the latter,thus leading to the possibility that distribution of criminal liability would be identified as singlepunishment rather than,actually,joinder of punishment for plural crimes.First of all,the issue of punishment of postmortem related crimes is actually a matter of quantity-in-crime,but it doesn’t resolve the controversy of crime theory,for if there exist disagreement on quantity-in-crime of the postmortem related action of actors,sentence for one crime or acquit the accused,onthebasis of the principle of "Assumption of Innocence",rather than discuss one crime or plural crimes.Next,the evaluation result of quantity-in-crime embodies in penalties on the criminal.On one hand,based on the traditional “one crime one punishment” principle,if the act of the criminalaccords with one crime,on which,one punishment will be imposed;accordingly,if the acts of the criminalaccord with plural crimes,joinder punishment will be imposed.Yet,in the case of related plural crimes,it is possible that plural crimes that should be imposed joinder punishment,may,actually,be only imposed one punishment,namely,the related minor crime is no longer punished.Therefore,quantity-in-crime concerns punishment,though,doesn’t directly relate to it.On the other hand,all crimes should take criminal liability,which means imposition of penalty.If there exist plural crimes,criminal liabilities for them should be investigated.But there are varying degrees of liabilities,so whether to investigate for criminal liabilities for plural crimes indiscriminately depends on inspection of the necessity of imposition of penalty on crimes separately.From the study substance of quantity-in-crime theory,the severity of punishments to the related-crime afterword,which manifest that postmortem adjoint behaviors should not be imposed punishment;postmortem closely-implicated offenses should be imposed heavier punishment in felony;postmortem implicated offenses should be imposed joinder of punishment for plural crimes;balance the punishment contradiction between the criminal and other participants,when joint offenses are imputed.The essay is divided into six chapters,except the introduction.Chapter1 is“Overview of penalty issue concerning related crimes after completion of a crime”.First of all,it’s essential to define the concept of related crimes after completion of a crime.That is to say,the postmortem related crime refers to that after the completion of a crime,the criminal committed another directly-related crime and meanwhile violate new legal interest,or intensified consequence of the former crime,conforming to a new crime.The study of the issue consist of three aspects: punishment dispute of postmortemadjoint behaviors,punishment dispute of postmortem closely-implicated offenses andpunishment dispute ofpostmortemjoint offenses;Meanwhile the study also analyzes rationales on the current argument of no punishment for postmortemrelated crimes,including “the theory of unpunished postmortem behaviors” and “the theory of anticipated possibility”.Whether to punish postmortemrelated crimes depends on the settlement of differences between crime and non-crime of postmortem related behaviors and between desired objective and actual result of postmortem related crime punishment,as well as the crime and punishment coordination issue.In the research on criminal law in China,neither the theory of unpunished postmortem behaviors nor the theory of co-punished postmortem behaviors can properly solve problems above.Meanwhile,in the penalty study of postmortem implicated offenses,the greatest barrier to mitigation of postmortem crimes with the theory of anticipated possibility lies in how to prove its justice.The theory of anticipated possibility excessively resolves the actor’s "free choice" to commit a crime,thus reckon that postmortem crimes of the actor can be mitigated.However,the theory seems to ignore the adequate protection to the victims’ rights and interests.To sum up,thetheoretical bases of whether to punish postmortem-related crimes,no matter which one,including non-punishment postmortem factum theory,co-punishment postmortem factum theory,and the theory of anticipated possibility can not give a sensible explanation.Chapter2 is “The legislation and practice of phenomena of penalty issue concerning related crimes after completion of a crime”.This chapter respectively gives brief introductions to the punishment criterion concerning related crimes in Continental law system and Anglo-American legal system.The features of legislative styles in the two legal systems are as follows: Firstly,punishment concerning plural crimes in Continental law systemtransforms,in general,from “doctrine of cumulation of punishments” to “principle of punishing with the heaviest penalty;the proposal of concepts,such as imaginative jointer of offenses,lapping of legal provisions,combinative crimes,“inclusive one crime” etc.,actually is aimed at realizing the imposition of punishment with the heaviest penalty on plural crimes.Secondly,Anglo-American legal systemapplies doctrine of cumulation of punishments to postmortem-related crimes as well.Yet the content of specific crime covers a grand range,thus many that are punished as one crime may concern plural crime in Continental law system,or may be explained by “inclusive one crime” in Japanese criminal law system.Meanwhile,the penalty execution of plural crimes in Anglo-American criminal law generally applies,apart from sequential execution,concurrent execution,making the penalty system gradually feature inclusivism.Penalty application in criminal law in China shifts from “punishing with the heaviest penalty” to joinder punishment.There are large amounts of discussions about implicated offense and inclusive offense in judicatory practice,but in respect of the penalty issue of postmortem related crimes,great disagreements exist between judicatory practice and theoretical research.In some knotty problems,theory does not instruct practice,while practice does object to theory.Chapter3 is “Chaos in penalty concerning related crimes after completion of a crime”.It is manifested in disunity in legislation of penalty on postmortem-related crimes.The same postmortem crimes,when connected with the former crime,follow the principle of joinder of punishment for plural crimes,the principle of heavy punishment,or even heavy punishment for combinative crimes,lacking relatively uniform legislation standard.In Judicial practice,postmortem-related crimes,especially the phenomenon of different judgments in the same case of implicated offense.Meanwhile,some typical penalty issues of postmortem-related crimes such as postmortem crimes of dereliction of duty,booty crimes and crimes on evidence,have a large difference from part of the results of theoretical research.Chapter4 is “Reason-analysis of penalty issue concerning related crimes after completion of a crime”.As a result of the lack of theoretical research on plural crimes theory,the application of the penalty in related crimes is not embodied in practice.First of all,present theory on plural crimes does not have clear reasons of judgment,instead,it just simply applies the theory to differentiate one crime and plural crimes.Without substantive argument on the content,it leads to the rigidapplication of criteria of crime composition,in penalty in related plural crimes,where only joinder of punishment is imposed and it is impossible to argue the possibility of punishing plural crimes as one crime.Next,the aim to study related crimes penalty issue is not judging the case as it stands,but to ensure the possibility of punishing plural crimes as one crime in actual penalty discretion,when a series of related crimes that the actor committed in sequence should be settled.No matter whether it is behavior singular theory,the theory of legal interests,the theory of criminal purpose,the theory of criminal constitution or individualized standard theory,comprehensive standard theory,it means exploring whether overlap situation exists among elements of behavior,legal interests,offense and criminal constitution,then impose one punishment on plural crimes.At last,theory research and judicial practice do not fully elaborate specific judgment criteria on whether to punish postmortem-related crimes,making groundlessly assumptions exist in relevant argumentation.Chapter5 is “Propositions on penalty issue concerning related crimes after completion of a crime”.Grounds of culpability of postmortem-related crimes come with a citizen’s duty to obey the law,the cost of the actor’s "free choice" and the obligation of the country to impartially perform its penal power.As the premise of the discussion on postmortem-related crimes is plural crimes,in respect of the evaluation,concurrent punishment should be implemented based on the criminal law.But with the relevance,it is possible to implement single punishment on plural crimes.Therefore,the conversing mechanism form concurrent punishment to single punishment on plural crimes is the substantial content of the postmortem-related crimes issue.The necessity of investigation for criminal liabilities of postmortem-related crimes is the core of the discussion on postmortem-related crimes issue.Therefore,the substance of postmortem-related crimes is distribution of criminal responsibility to solve the problem that the criminal has committed plural crimes.The judge should first comprehensively consider how closely related are the behaviors,the results and range of infringement of legal interests and whether multiple felony sentences are sufficient to include punishment for related crimes,and then decide whether punish related crimes in addition.To ensure the necessity of penalty of postmortem-related crimes,there are two requirements: for one thing,legal interests that cannot be "sacrificed" are offended;for another,the necessity of punishment in the balance between crime and punishment exists.With respect to classification,if postmortem crimes additionally violate exclusive legal interests and contraband control order,and impair public power,the crimes should be imposed joinder of punishment for the former crime.Otherwise,even the postmortem related crime is considered a crime,there’s no need to punish.Chapter6 is “The practice and application of penalty issue concerning related crimes after completion of a crime”.It mainly states the types and punishment forms of related crimes.The punishment of postmortem-related crimes varies from mild to severe,which can be divided into three kinds: postmortem adjointoffense,postmortem implicated offense and combinative crime.First of all,since postmortem adjoint behaviors do not deviate the legislative presupposition range of leading crime forming elements,no punishment may be given in principle,as long as no imbalance between crime and penalty.Next,as China’s understanding of implicated offense emphasize largely on the dominating effect of subjective intention on implicated relation,there is doubt that indulgence of crime may exist in punishment.Therefore,postmortem implicated offense should be divided into common-implicated offense and close-implicated offense,and in principle,common-implicated offense should implement joinder of punishment for plural crimes while close-implicated offense should implementaggravated punishment.What’s more,the substance of combinative crime is statutory “Inclusive offense”,with aggravated punishment on combining related crimes into one crime the form of punishment.Because of the severe punishment,the research value lies in the prevention of expansion of legislation in combinative crime,so that some related-crimes that are not necessarily aggravated are aggravated punished.At last,in respect of penalty for postmortem joint offenses,whether to actuallyimpose penalty on his postmortem offenses should be ensured,on the basis of making it clear that the actor should be punished after the crime,from the standpoint of evaluating the co-offender independence,and combined with the specific joint crime situation.