The Establishment Of Theory Of Concurrent Punishment For Several Crimes In Accordance With The Limitative Aggravation Principle

Concurrent punishment for several crimes is an important part of the system of modern criminal law, and it is very useful both in cracking down crimes and protecting human rights. The principle of concurrent punishment of several crimes is the core and soul of this system. In other words, it determines the system and result of concurrent punishment. But in China, the theory is not thorough, and the limitative aggravation principle doesn't take its exclusive place. The article is divided into five main parts:1. The limitative aggravation principle is the only principle of the concurrent punishment for several crimes.Principle of the concurrent punishment for several crimes is the doctrine for punishing persons who commit several crimes. There are four opinions about the doctrine. They are the principles of accumulation, absorption, limitative aggravation and compromise. When we check on the origin of the concurrent punishment for several crimes, we can define the exclusive stature of the limitative aggravation principle. The limitative aggravation principle can reflect the continuity of defendant's dangerous personality; meanwhile, it could guarantee that this personality doesn't receive duplicate results when it is evaluated. Furthermore, the limitative aggravation principle has the universality and guarantees the principle of a legally prescribed punishment for a specified crime.2. The scientific connotation of the limitative aggravation principle.There are two ways to comprehend the limitative aggravation principle, one is aggravating punishments singly, and the other is aggravating punishments compositely. Considering the characteristics of Chinese law, we take the latter. So the limitative aggravation principle must contain four elements: (1) the execution of sentence is shorter than the total term of all the crimes ;( 2) the maximum of the individual crimes is shorter than the maximum statutory penalty; (3) the penalty couldn't be upgraded; (4) the circumstances for sentencing couldn't bring repetitive effects to the defendant. When the method is concerned, there're five alleges: compression for extent, aggravation with unit term, determination with surplus penalty, conversion of modulus and formula of function. Based on the above analysis, the thesis takes the following method: firstly, determine a basal punishment, which is the sum of the maximum of the individual crimes and half of the other penalty; secondly, amend this basal punishment with circumstances for sentencing and other elements.3. The reflection of the limitative aggravation principle in different penalties.Generally, as the only principle of concurrent punishment for several crimes, we can use the limitative aggravation principle directly. However, we should do something special as follows: (1) against the humanitarian ground, the concurrent punishment for death penalty, deprivation of life and civil right and forfeiture of all property cannot be aggravated, just remain one of them; (2) several stays of execution could change to death penalty, or prolong the probation period; (3) the concurrent punishment in life imprisonments and fix-term imprisonments, should be taken some short-term imprisonments firstly; (4) For different imprisonments, we couldn't take accumulation, absorption or conversion, the right way is the basic approach; (5) take the merits of both subsection and proportion to determine the concurrent punishment for accessory penalty of deprivation.4. The reflection of the limitative aggravation principle in different relations between crimes.Unsettled crime is the crime that committed and discovered before the trial, and it is the generality of concurrent punishment for several crimes. We can use the basic principles of concurrent punishment to resolve this question. Omitted crime is the crime that committed before the trial but discovered after the trial. To omitted crime we use the method"add and subtract", it means that add the individual crimes first, then subtract the terms which has been executed. Fresh crime is the crime that committed between the trial and expiry. The traditional method"subtract and add"must be abolished due to many faults, and the method"add and subtract"is the right way. When the omitted crime or the fresh crime is committed (discovered) during the probation or parole, the probation or parole need to be repealed and concurrent punishment should be conducted accordingly.5. Some proposals on legislation about the limitative aggravation principle.Although our existing law has many articles about the concurrent punishment for several crimes, there aren't enough methods. So alteration of legislation must be made. Firstly, there must be an article to prescribe the basic status of the limitative aggravation principle. Secondly, there must be several articles to prescribe the concurrent punishment for unsettled crime, Omitted crime and Fresh crime. Furthermore, the concurrent punishment for several crimes in probation or parole shall also be designed and put into relevant sections.