A Primary Study On The Fundamental Theory Of Aggravated Offence By Circumstances

The stipulation of aggravated offence by circumstances has been a great characteristic of Criminal Law of China. In contrast with all the other contries of the world which expressly stipulate the aggravating circumstances to ensure that penalty shall be compatible with crime, the criminal law of China distinguish different levels of crime and penalty in a complex and generalized way. The judicial department may decide the content of each aggravating circumstance. The stipulation in criminal law contributes to the theoretical study of aggravated offence by circumstances to affcilitate the reasonable application of the law. This thesis will, based on the current study of aggravated offence by circumstances, give a deep elaboration of the definition, legal and practical reasons, basic character of such offence, how the offence is formed and what to do if the offence is unfinished or if it is combined with other circumatances. The author will also analyze the current legislative mode of such offence and made suggestions in order to affciliate better legislation and application of such offence.This thesis will be divided into seven parts apart from the preface:The first part elaborates the definition of aggravated offence by circumstances and relevant concepts such as aggravating circumstances, circumstances in criminal law, offence by circumstance et al.The second part elaborates the reasons that aggravated offence by circumstances is stipulated. Theoretically speaking, the author holds the oppinion that, based on the principal that penanlty shall be compatible with crime, crime and penanlty has a complicated relation which could not be simply regarded as equivalence. In most cases, the same kind of crime may have different extent of harm to the soceity, correspondingly, different levels of penalty is provided with in criminal law. Therefore, penalty has levels just as crimes do. On basis of general offence, offence by circumstance can be classified as mitigated offense by circumstances and aggravated offence by circumstances. Consequently, the stipulation of aggravated offence by circumstances is the requirement of "no trial no crime" and "penalty shall be compatible with crime". Practically speaking, the author holds the opinion that the stipulation of aggravated offence by circumstances is necessary to limit the discretion of justice and ensure the fairness of the jucial department. The existence of aggravated offence by circumstances limit and guide the discretion of the judges to some extent, because it provides a specific criminal concept while does not throughly defy the discretion of the judges, that is to say, fight of discretion in criminal law shall be applied within statutory extent for discretionary action of sentencing.The third part elaborates relevant laws of aggravated offence by circumstances. The author will first illustrate stipulation of foreign countries and ancient china, then analyze article by article and crime by crime the aggravated offence by circumstances according to two types, generally stipulated aggravating circumstances and specificly stipulated aggravating circumstances.The fourth part elaborates the basic character of and conditions to form aggravated offence by circumstances. Aggravated offence by circumstances is based on the conctitution of general offence. No general offence, no aggravated constitution. Aggravating circumstances are circumstances for adjudgement expressly stipul.ated in subprovision of criminal law. Aggravating circumstances are also the conditions of aggravated constituion of aggravated offence by circumstances. The penalty of aggravated offence by circumstances are characterized by independent aggravated penalty compatible with aggravating circumstances. The conditions to form aggravated offence by circumstances are as follows: such offence shall be composed of two criminal units, general offence as one criminal unit and aggravated offence by circumstances as another criminal unit; aggravating statutory sentence shall be applied because the offence comforms with certain circumstances, or there is no aggravated offence by circumstances; such offence shall not only conform with the conditions of general offence but also be severe enough to constitute aggravated offence by circumstances.The fifth part elaborates quantity of aggravated offence by circumstances. Because of the diversity of aggravating circumstances, the quantity of aggravated offence by circumstances is so complicated that the quantity of which can not be easily defined. The author holds the opinion that the quantity of aggravated offence by circumstances shall be based on the criterion of constitution. If one constituion is formed, one crime is convicted; two constitutions, two crimes. Repetitious evaluation is forbidden in this respect. An offender of aggravated offence by circumstances may constitute one crime in essence if he makes one conduct out of one specific goal and conforms with one constitution. An offender may constitute one crime by statute instead of one crime in essence. Implicated offense, continuing offense and notional concurrent crime can all be punished as aggravated offence by circumstances.The sixth part is concerned with unfinished mode of aggravated offence by circumstances. After illustrating different views in respect of the existence of the unfinished mode of such offence, the author holds that there does exist unfinished mode of such offence. The reason for such opinion is that there may be unfinished mode of conduct in aggravated intentional offence. Besides, existence of unfinished mode in aggravated offence of circumstances is essential in order to conform with the principle that penalty shall be conformed with offence and the practice of criminal judication.The seventh part analyzes legislative mode of aggravated offence by circumstances in criminal law of China. Suggestions are also made in this respect. The author will first analyze the three legislative mode: general mode, illustrative mode, general and illustrative mode. Then the author will give four pieces of suggestion in respect of legislative mode: decrease ambigious words in charges in an indictment, distinguish general offence and aggravated offence by circumstances by means of stipulating different accusal; coordinate stipulation of statutory sentence of aggravated offence by circumstances; redefine several kinds of aggravated offence by circumstances.