Research On Handling Principle Of One Act's Violation Of Several Provisions In The Criminal Law And Its Legislation Improvement

The same act violates several provisions in the criminal law, which is a common problem in judicial practice. How to deal with the aforesaid situation is an important issue to be solved in criminal theory and judicial practice.This paper consists of four parts and discusses relevant issues of handling principles of one act's violation of several provisions in criminal law.The first part analyzes the provisions of current criminal law and the disadvantages. The 1997 Special Provisions of the Criminal Law and Judicial Interpretation mainly provide three handling principles: severer punishment with one alternative felony combined punishment for several crimes and punishment with one alternative felony. The present legislation design and provisions have the following disadvantages: the first is the damage of the unity and authority of the law; the second is understanding confusion and judgment disorder in judicial practice; the third is the violation of the compatibility principle between guilt and liability; the fourth is the disorder of theoretical research and the fifth is trivial detail of law articles and exhaustiveness.The second part discusses the research results and their deficiencies of theories of quantity of offense. Owing to written law base,"crime constitution theory"becomes the common view on the criterion for judgment of quantity of offense. At present, we have established relative sound research system of the theory of quantity of offence, criterion for judgment of quantity of offense, the system of one crime type, imaginative jointer of offender and implicated offender have become the fixed contents of the research on quantity of offense. The research on quantity of offense has the obvious deficiencies, such as complicated concepts, spare micro-delicacy but lack of macro-integrity; disputes on opinions make people not know to follow whose opinions; intellectual enquiry tint hovers over and practical sense is to be improved. The failure of the general provisions of the criminal law to make provisions on the punishment principle of one act's violation of several provisions in the criminal law results in the complex of the research on quantity of offense. The theoretical research and the deficiencies of the provisions in the criminal law interact with each other.The third part discusses legal systems of other countries and regions and their reference senses. As far as one act's violation of several provisions in the criminal law is concerned, the punishment principle provided by Germany criminal law contains the contents from three aspects: the first is the sentence of one punishment; the second is the sentence of punishment in accordance with the severest provisions on criminal punishment and the third is the sentenced punishment no lighter than the punishment provided by other applicable provisions. Article 54 of the Japanese criminal law provides that where one act violates no less than two different offenses or the means or the result of an offense violates other offenses, such violation shall be sentenced with the severest punishment. The revised criminal law in China Taiwan provides that one act that violates several offenses shall be sentenced with the severe punishment, but may not be sentenced with some punishment below the lightest punishment with relatively light offense. These countries and regions basically define the basic principle of punishment with one alternative felony and their articles in the criminal law are characterized with definite and clear contents and brief and conciseness of the character, worthwhile to be referred to.The fourth part discusses the improvement of the provisions in the criminal law in China, that is, the general provision of the criminal law should be revised to clearly provide the handling principle of one act's violation of several provisions in the criminal law. The revised article is to be expressed as: one article to be added subsequent to Article 71 of the criminal law as article 1 of Article 71:"where one person commits one act which constitutes no less than offenses provided by law, such act shall be sentenced in accordance with the relatively severer provisions, but the sentenced punishment may not be lighter than the punishment provided by other applicable provisions". The theoretical and practical meaning of clear provision on one act's violation of several provisions in the criminal law lies in that the improvement of the legislation of the criminal law; better implementation of the basic principle of the criminal law of sentence and punishment according to law; further reflection of the principle of compatibility between offense and sentence, conducive to realizing trail fairness; more integrity of the system of the criminal law; bridging the divergences of theoretical research on the theory of quantity of offense and improvement of theoretical research.