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Research On Several Issues On Crimes Of Amount

Posted on:2007-08-06Degree:MasterType:Thesis
Country:ChinaCandidate:Z G YangFull Text:PDF
GTID:2166360185454358Subject:Criminal Law
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The concept of crime, in the criminal law of China, is a qualitative as well as a quantitative concept. Amount of a crime is an important factor among the quantitative factors in the concept of crime. The provisions on amount of a crime materialized in special provisions of China Criminal Law cause the formation of a special pattern of crime - Crime of Amount. The amount of a crime refers to the amount of properties or articles, is specified in the special provisions of China Criminal Law, involved in a criminal offence and could be measured according to certain standards. The crime of amount refers to a special pattern of crime, in which the amount of offence is one of constitutive requirements in the crime. The amount of crime is not a substantial factor in parallel to the harmful act and harmful consequences in the objective aspect of a crime, but an evaluation factor dependent on substantial factors. Therefore, it is a comparatively independent factor among all objective constitutive requirements.There is dispute among scholars over the question whether an attempt in the crimes of amount, including the affirmative theory, negative theory and compromised theory. Based on clarification of some questions in the basic theory, it is certain that the existence of attempt is possible in the crimes of amount. To accurately identify the attempt of crimes of amount, it is necessary to introduce the concept of endangered amount. The Endangered Amount refers to the amount involved in any criminal offence, representing the extent how the relevant legal interest is infringed by the criminal offence. For instance, the "value of goods" in the crime of manufacturing or selling counterfeit products, or the "subject amount" in the crime of theft. In an attempt of crime of amount, there is amount of crime, but in form of endangered amount, not actually infringed amount. The concept of endangered amount is of importance to the determination of an attempt of crime of amount. The punishability of an attempt of crime of amount is subject to the individual determination of a judicial officer with his own discretion.The whole academic cycle of criminal law still has no systematic study on the issue of error of cognition in amount. The Error in Cognition refers to any error in cognition of an actor on the value of a subject, which may be as cash or any properties. This is to say, there is inconsistence between the value of a subject in an act recognized by the actor and the actual value of such a subject. From its very nature, the error of cognition in amount is not a separate type of error, but an error of cognition in the subject, which belongs to a type of error of cognition in fact. The ambiguity in identification of error of cognition in amount to a large extent shows the insufficiency of study on the statutory constitutive requirements in academic cycle of China in the criminal law study. The identification of error of cognition in amount shall apply the doctrine of consistence with statutory constitutive requirements. If error of cognition in the amount of the subject made by the actor exceeds the limitation as specified under the concerning constitutive requirements, it will influence the establishment of an intention and the determination of criminal responsibility of the actor.In the code of criminal law and relevant judicial interpretations in China, there are many provisions on the calculation of accumulative amount. However, the provisions on the calculation of accumulative amount in relevant judicial interpretations are quite confusing. The academic cycle of criminal law also have a great dispute over the understanding on the calculation of accumulative amount. With respect to the theoretic basis of calculation of accumulative amount, there are many theories among scholars of the criminal law, such as continuing crime theory, several offences but one crime theory, multi-pattern combination theory, special rule theory and equivalent in social harmfulness theory. Difference in understanding on the theoretic basis of this rule directly affects the determination on specific issue. From its very nature, the calculation of accumulative amount is only one time of evaluation on several offences, including the situations of plural offences of the same kind, continuing offence and continuing action. Only on the basis of the above mentioned opinions, it is possible to give a satisfactory answer on the never ending dispute in the judicial practice over the nature and scope of any acts where need to calculate the accumulative amount.
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