The New Statement To The Theory Of Enactments Overlapping

Enactments overlapping is not only the important criminal theory, but also the general legislative phenomenon. At the present, there are many arguments about the types and the principles applied to justice of the overlapping of enactments in our country's criminal theory. 1 think that, the main reason to cause the phenomenon is the lack of the enactments overlapping theory's basis. Enactments overlapping is the fact that exists in the legislation. The judge to the relations of the overlapping of enactments is the actual judgment. The purpose to research the enactments overlapping theory is to put forward the basis for justice application. The justice application of the overlapping of enactments is the process of valuable judgment. On the above viewpoint, in order to be helpful to the research and the justice practice of our country's enactments overlapping theory, the thesis expounds the present situation of our country's enactments overlapping theory research completely. The thesis consists of five parts.The first part discusses the attribute of the enactments overlapping theory. The object of the overlapping of enactments is the constitutive elements of crime. Enactments overlapping is the inclusive or overlapping relation that exists in the regulated constitutive elements of crime. Enactments overlapping does not belong to category of crime pattern, but belong to the category of rule relationship. The social basis that produces the enactments overlapping phenomenon is the complicated social relationship. The basis of law is the type feature of the conduct of the constitution of the crime.The second part discusses the types of the relation of enactments overlapping specifically. From the viewpoint of the formal logic and the actual judgment, the enactments overlapping has two types, inclusive relationship and overlapping relationship, which were applied alternatively by the researchers in the present research, which causes the confusion of research's viewpoint, although the viewpoint of competition of law and regulation relationship's research is the content and the extension of the concept. The research on the viewpoint of the content is good for the alternative application of rules in the juridical practice. But the content is connected to the valuable judgment frequently. As the actual phenomenon, the research to the enactments overlapping should be on the viewpoint of the extension of the concept that is more rational than the content of the concept.The third part expounds the theory basis of rule's application seriously. In the juridical practice, the theory basis of choice of the overlapped rules is the principle of prohibiting repetitive assessment and the principle of the full assessment. We can't judge the crimes that replaced in the practice more times in trial and not be back of the consideration of the conduct's other more serious crimes.The fourth part puts forward the basic principles that should be followed in the juridical practice of the overlapping of enactments, which contains the principle of special rules prior to usual rules, the principle of complete rules prior to partial rules, the principle of complex rules prior to simple rules. "Strict rules prior to easy rules" is not the principle in the juridical practice of the overlapping of enactments, because it not only conflicts to the theory basis of application of the overlapping of enactments but also initially runs counter to the basic principle of conviction first and sentence second in the rule's application.Though the application principle of strict rules prior to easy rules is used in some special cases in our criminal law , it can't be proved rational.The fifth part, the thesis's conclusion, induces and summarizes the thesis's basic standpoint simply.