Research On The Standard Of Overlap Of Criminal Norms

Along with development of modern criminal law, overlap of norms of criminal law has been a common phenomenon in criminal law. Some criminal law scholars have made some fruitful research on how to apply suitable criminal law norms to knotty and controversial cases in practice. However, research on the standard of overlap of criminal law norms is very weak, so it is really necessary to do some basic research on standard of overlap of norms.This paper can be divided into following parts:The preface: summarizing the structure of paper.The first chapter: the value basis of overlap standard of norms. This section argues the value of overlap standard of norms is based on: (1) the necessity of establishment is the exist of overlap of norms, the main reasons are the complication and extensiveness of the social relations adjusted by criminal law, the diversity of the standards of criminal classification, the need for strict criminal law, the demands of protection of the legitimate rights and interests of the criminal, and the nature of words and technical factors.(2) the starting point of construction is the essence of overlap of norms, that is overall overlap of elements of crime constitution. The object aspects of crimes, the objective elements of crimes, the subjects of crimes, ant the subjective elements of crimes are overlapping elements. If any element is completely different, overlap of norms can not establish. (3) The standard must be workable, that is it must be derived from criminal norms, or at least in line with norms, must be concise, having its own specific elements of the composition, must be useful to determine the specific relationship between norms, and must meet the people's thinking habits. (4)The establishment of standard is of great theoretical and practical significance.The second chapter: the concrete construction of overlap standard of norms. This section criticizes the logical standard, then defines the scope of overlap of norms, and constructs the concrete standard: (1) The standard is overall overlap of elements of crime constitution, that implementing acts of objective aspects of crimes superpose, and other elements of objective aspects of crimes are compatible, that objects of crimes and subjects of crimes are compatible, and that they play the role as a whole.(2) The implementing acts of objective aspects of crimes superpose, and other elements of objective aspects of crimes are compatible, and it is the act of objective elements of basic crime constitution.(3) The type of subjective offense is consistent, that is to say, subjective offenses of different crime stipulated by norms are intention or negligence, not one is intention, and the other is negligence.(4) The objects of crimes are compatible, which have two situations: first, they superpose, which contains a inclusive superposition or cross-superposition; second, they are non-superposition compatibility, which can be co-exist, not contradictory logically. (5) The subjects of crimes are compatible, which do not require they superpose, only require they are compatible if overlap relationship exist.(6) The negative standard is that separations exists between constitutional elements, which are contradictory, no-exist, and separation in any element of crime constitution will inevitably defy overlap of norms'exist. (7) The test standard is existing of inclusive combination of elements of crime constitution, that includes the elements of different norms, and crime stipulated in the combination can be meet the respective norms at the same time.The third chapter: overlap of norms in our Criminal Law. This section elaborates several controversial examples of overlap of norms in theoretical circle, and does a rough list for common overlap of norms in our Criminal Law.The thesis's conclusion: inducing and summarizing the thesis's basic standpoint simply.