Research On The Basic Question Of The Concurrence Of Articles

The concurrence of articles of law is a ubiquitous phenomenon of criminal law, there are rationality and inevitability for its formation and development .Although the concurrence of articles of law originates from criminal legislation, but has been finally reflected in the criminal justice practice. In recent years, against the controversy on law shall application in certain cases appeared in judicial practice, some criminal law scholars conducted fruitful exploration on concurrence of articles of law, however, because of its theoretical complexity and practical difficulty, a unified conclusion has not yet been formed. This article based on reality, combined with the latest research results at home and abroad, combed the basic questions of the concurrence of articles of law, hoping to be able to form a clearer understanding.In addition to the introduction, the full text contained three parts:The first part defined the concept of concurrence of articles of law and described the mechanism of its occurrence. Based on the analysis and evaluation of some basic arguments about the concurrence of articles of law ,the author put forward the definition of concurrence of articles of law in the paper- because of the complex provisions of the law, on the surface ,a criminal act complies with several constitutions of a crime stipulated in provisions of the Penal Code at the same time, but in essence only one of the constitutions of a crime can provide a full comprehensive evaluation of the act, therefore, the conviction and sentencing discretion should be conducted according to this constitution of a crime under the provisions. Then the paper discussed the inevitability that is, its causes: the complexity of social relations adjusted by the criminal law, the thoughts and legislation logic of the international community to protect the human rights and the specificity of criminal law language together made up of the deep social roots and logical foundations which should had been avoided to the utmost.The second part analyzed the types of concurrence of articles of law specifically. First, it introduced the partition of concurrences in criminal law theory of continental law system, Including: special relationship, supplementary relationship, absorption relationship, alternative relationship. Second, It introduced the explorations about this problem in China, among which using expression forms in Criminal Law subprovision as the classification criteria received little arguments from scholars and a consensus was reached; while controversies on the classification was still ceaseless, currently ,there mainly exist the following several doctrines: four types theory(separate concurrence, inclusive concurrence, mutual concurrence, partial concurrence),three types(extension inclusive concurrence, extension cross concurrence, connotation subject concurrence),two types theory (inclusive concurrence, cross concurrence),one type theory(relationship between special law and general law).In the end of this part, the author put forth the classification of concurrences of articles of law in this paper referring the sensible kernel of the bygone research result ,using conception relationship classified by formal logic as criterion and the most common language. Concurrence between common law and particular law(the constitution of a crime stipulated in one law article was included in another constitution in another article, the relationships between the two constitutions were inclusive and be included ),concurrence between comprehensive law and unilateral law(parts of the constitutive elements of crime in one law article and in another article overlapped in extension, so it occurred as the mutual cross situation between the constitutive elements in the two articles, furthermore, this two articles did not belong to each other generally),concurrence between the integral law and the fractional law(such partition was conducted according to the connotation of the constitutive elements stipulated in law articles. When the overall constitutive elements of one law article were also part of the constitutive elements of another article, then the concurrence relationship between the integral law article and the fractional law article occurred).The third part introduced the judicial application of concurrences of law articles in details.In judicial application, no repeated evaluation principle and thorough evaluation principle together acted as the theoretical foundation of choosing only one law article to apply in the end while excluding the others .Of the criminal act occurred in reality, neither should it be evaluated several times in conviction and sentencing, that was forbidding double evaluation, nor should the actors' more serious illegal acts be neglected, that was thorough evaluation of criminal acts. After dwelling on no repeated evaluation principle and thorough evaluation principle,specific to the concurrence classification in the second part, the author put forth the judicial application principle of law article concurrence correspondingly : common law is prior to particular law,comprehensive law is prior to unilateral law,integral law is prior fractional law. In the end, in view of the pervasive claim of "severe law is prior to light law" in both theory and practice circles, the author conducted analysis,evaluation and then denial, because that such claim violated "conviction and penalty according to law" principle, which would lead to judicial power transgressing legislative power; run counter to principles of comprehensive and through evaluation and prohibition of duplicate evaluation; occasional legislative phenomena and several judicial cases could not be used as rational basis of "severe law is prior to light law".