Study On Some Problems Of Absorbable Offense

At present, the absorbable offense is an important part of Chinese criminal law. But our country's criminal law does not do enough research on the theory of the numbers of crime. This insults that kinds of crime forms in the criminal law is not clearly defined. Until today, scholars are still discussing about the concept, characteristic, the nature of the numbers of crime and the absorbable relationship of the absorbable offense. They can not agree with each other about the above problems. They also insist their own idea on the relationship between the absorbable offense and other crime forms. There is even dispute on whether the absorbable offense should exist. On the basis of referring to the theories of the absorbable offense in other countries and the situation of the Chinese criminal law theory and the practice of criminal justice, the author holds that absorbable offense, as a real phenomenon, has its existing necessity. What we should do is to fix a right position to it according to a rational criterion in our country's criminal law theory. Only we do deep research on absorbable offense and recognize rightly the relative concepts of absorbable offense, can we have positive effect on legislation and justice. The author puts forward that the key point is to make clear what is the nature of the numbers of crime of absorbable offense and its independent living space when we define the relative concepts of the absorbable offense. If we understand these problems, we can also solve other problems about absorbable offense.This paper consists of four parts besides the introduction and the conclusion, with a total of over 20 thousand words.The first part is the introduction. Basis on the present research situation of the absorbable offense, this paper expounds the absorbable offense from its nature of the numbers of crime and its independent living space. It aims to differentiate relative concepts exactly, give a rational position to the absorbable offense and provide theoretical support to legislation and justice.The second part introduces the current situation of absorbable offense abroad. It inspects the theory of the absorbable offense from the angle of comparative law. This part divides into three sections. Firstly, it presents the theories of the absorbable offense in the continental law system countries, especially in Japan. Secondly, it presents the general situation of the absorbable offense in American legal system countries. Thirdly, it presents the change of the recognition of the absorbable offense in Taiwan.The third part talks about the theoretical foundation on researching the absorbable offense. This part consists of two sections. Firstly, it introduces and comments many criteria of judging the numbers of crime in criminal law theory at present. At last this paper adopts the criterion of the crime committed theory, because this criterion can make up deficiencies of others'and accord with other theories in Criminal Code. It agrees with the principal of a legally prescribed punishment for a specific crime. Secondly, it tells the elements of judging the numbers of crime. The author points out that there are two important elements in judging the numbers of crime. One is the element of act. This paper evaluates and analyzes the theory of unitary act number, polynary act number and binary act number. At last the author supports the theory of binary act number. That is to say, we judge the numbers of act from the aspects of nature and standard respectively and sequentially. It should be emphasized that we still ought to obey to the crime committed theory when we judge the numbers of act from the aspect of standard. The other one is the element of accusation. This paper introduces the relation between accusation and the crime committed theory. It explains that we should pay attention to the difference of single accusation, selective accusation and inclusive accusation. This paper distinguishes intensively between the absorbable offense and plural acts offense.The forth part is a significant part in this paper. It is concerned with the nature of the numbers of crime of absorbable offense. There are four kinds of theories about this, a crime in simplification, a crime in substance, plural crimes in substance and a crime in sentence are included. Through comparative evaluation and analysis of these theories above, the author proposes that we put the absorbable offense under the scope of a crime in sentence.The fifth part is the most important part in this paper. It clarifies the independent living space of absorbable offense. This part divides into two sections. The content of section one summarizes sorts of theories on the independent living space of absorbable offense, including a number of heterogeneous acts, a number of homogeneous acts and the unrestricted theory. Section two deals with the analysis of those theories. The author assents the theory of a number of homogeneous acts. Through the comparison between the absorbable offense and the continual offense, the author confirms further that the theory of a number of homogeneous acts is the really independent living space; through the comparison between the absorbable offense and the implicated offense, the author denies the theory of a number of heterogeneous acts and the unrestricted theory.The sixth part is the conclusion. This paper puts the absorbable offense under the theory of the numbers of crime. Basis on the criteria of judging the numbers of crime and the elements of judging the numbers of crime, the author points out that the nature of the numbers of crime of the absorbable offense is a crime in sentence and the independent living space of the absorbable offense is a number of homogeneous acts. The paper distinguishes the absorbable offense, the implicated offense, the continual offense and the plural acts offense separately. All of these above is to offer a new way of perfecting the absorbable offense theory in Chinese criminal law.