The Research On The Transforming Crime

To concide with the developing of society , the legislators made laws different from the general theories of criminal law;on this legislation foundation, our country's scholars of criminal law proposed the transforming crime theory. As a new theory, the scholars have researched on various apparents sence it was proposed 20 years ago.this article is divided into five parts, introduced the characteristic and constitutive elements of transforming crime,crime manner and legislation of transforming crime,and analyze the legislative value of the transforming crime, finally put forward the legislative perfections.Part one: introduced the present survey of reseach on tranforming crime. Because the scope what was transforming crime is not clear, people have different viewpoint about it ,therefore the concept of it also needs to consummate. Also introduced And compared with the overseas transforming crime legislation, then pointed out the insufficiency of our country's criminal theory; The reason why proposed the transforming crime legislation, is the criminal law theory too falls behind to the society, cannot meet the social need, the legislators unified the daily life experience, and atonement which is insufficient to the theory, produced legislatives; Introduced the root which the commit produces, legislativily, it is because the law internal order is not harmonious; Theoretically,it's the criminal theory has the flaw; practically ,it's the criminal law meet the social need, keeps pace with the times.Part two: Introduced the numerous concepts of the transforming crime, combining concepts analyzed its characteristic, the transforming crime can only transformation between the intentional offense, this achieved the mutual recognition, does not do excessively analyzes; The transforming crime can only be the misdemeanor transformate to the grave offense, some proposed that, allowing only the misdemeanor transforms to grave offense, is not conform to the society actual,the humanity and so on. Beacause the legislative root ot transforming crime is not indulge the crime to embark, and the behavior that the grave offense transforms to the misdemeanor, is possible to solve well definitely under present legislative system, In order to save the legislative resources and so on, it's not necessery to stipulate it as transforming crime; Constitutes of the basic crime and the transformed crime of the transformaing crime has superposition, the ductility, and passes through each constitutive element of two crime, also made multianalysis about it; Finally introduced legality of the transforming crime.Part three: reseached on the crime manner of transforming crime, analyzed its attemped aspect, the aborted aspect, transforming crime should have different manner of accomplished aspect, aborted aspect with the standard transformed crime, the accomplished offense, aborted aspect of basic crime and transformed crime have no positive connection, aborted aspect of the basic crime does not inevitably cause the aborted aspect of transformed crime; The joint crime question of transforming crime, and successive joint crime may also constitute transforming crime; Transforming crime is a grave offense transforms from a misdemeanor, so the misdemeanor has no insignificant, so it should be a substantive crime.As an independent patterns of plural crime, compared it with quasi crime, implicated crime, absorbable offence, aggregated consequential offenses and the combinative crime.Part four: analyzed the legislative value of the transforming crime from five aspects, is advantage to implementation of the balance between principle of crime and punishment, is advantage to the atonement criminal law theory insufficiency, keeping with the restraining criminal law spirit, promote legality's internal order harmonious and quite with its social harmfulness and so on.Part five: unified the foreign legislations and the analysis of transforming crime above, puts forward the legislative perfectory proposal. Carry legislate analysis on our country's crime of extorting a confession by torture, crime of resorting to violence to obtain testimony, the crime of maltreating prisoners transform to crime of willful and malicious injury, the crime of intentional homicide, I think the subjective aspect must be intention, cannot be negligence, and puts forward the perfection proposal; About theft, crime of swindling, crime of forcible seizure transforming to the crime of robbery, emphatically analyzed the question of "the residence burglary" transforms to crime of robbery, and make a summary analysis about the transforming crime of special law of stole, crime of swindling, crime of forcible seizure; Ultimately, analyzed kidnapping's aggravating result crime,I think the two situations should be treated differently, "kill the kidnapped", should transform into the murder crime.