| Transformed crime holds an important space in the present criminal law;however,the basic connotation and condition of the transformed crime itself are ambiguous which result in much controversy unavoidably when we make theory probe into the transformed crime.Feeding back to the judicial practice,the ambiguities bring thorny confusion and dilemma. Therefore,this master paper is directed towards the elementary theoretical questions of the transformed crime which have profound significance to both the academic probe of the theories and the judicial practice.This paper altogether has 40,000 characters approximately and the overall construction is divided into four major parts.The first part mainly discusses the concept of the transformed crime. The author believes that three substantive factors are intrinsically included in the concept:the behavior nature before transformation,the conditions and the relations of transformation.These three aspects are essential and basic to the transformed crime.If the prerequisites,the conditions and the relations are deficient,none of the transformation of crimes is complete.Only by judging from the above-mentioned three aspects can we determine weather the transformed crime is established, clearly define the specific characteristics of the transformed crime and accurately make judgments.Through analyzing the intrinsic specific properties and general characters of the transformed crime,the author believes,the transformed crime refers to the type of crime that in the actor's process of implementing an intentional offense,for the intentional content of the actor and the resulting changes of objective behavior have met the legal conditions,therefore,intrinsic relations of transformation exist between the initial crime and the transformed crime,moreover,the actor has offended another more grievous intentional offense,thus according to the criminal law,the actor is declared guilty of the more grievous crime.The second part mainly elaborates the constitutional characteristics of the transformed crime.The author holds that the transformed crime is the transformation between crimes.Since the transformation of ordinary violation of law to criminal act,not criminal act to criminal act,gives rise to the establishment or formation of a crime,thus violation of law can not be deemed as the initial crime of the transformed crime.The patterns of crime of the transformed crime,whether unaccomplished offense can be the foundation of transformation,shall be treated differentially according to different types of the transformed crime:in view of Article 269 in the criminal law about transformational offense of robbery which takes specific method of crime as transformed condition,attempted crime can be regarded as the initial crime.Apart from this,only the accomplished offence can be the initial crimes of the transformed crime.The impunity of preparatory act in principle,the inalienability of preparatory act and sequent act,finally designate that preparatory act shall not be considered as the initial crime in the theoretical structure of the transformed crime.The third part ponders over certain legislative examples of the transformed crime in our criminal law.The author holds that it is necessary to further consummate the transformed crime of varied types: firstly,in the legislative example of taking serious results as transformed condition,when the result "cause death to a person" appears,taking the actor's subjective mentality as a standard,we are unable to differentiate the result coming from "willful injury" or "willful homicide".Therefore, the decision of whether to apply Article 232 of "offence of intentional killing" or Article 234 of "offence of intentional injury" in the criminal law is hard to make.In order to avoid differences in law application,the author considers revising these legal provisions as:"...,a person who intentionally inflicts bodily injury upon another person shall be convicted and sentenced in accordance to Article 234 of the law...a person who intentionally commits homicide shall be convicted and sentenced in accordance to Article 232 of the law."Secondly,Article 333 of the criminal law about the crimes of a person who organizes illegally other persons to sell blood and a person who forces other persons by means of violence or threat to sell blood are inconsistent with the statutory crime of the offence of intentional iniury. Therefore,the author suggests,in the situation of not changing the statutory crime of the offence of intentional injury,amendments shall be made to Article 333 about the transformed crime in the criminal law. Regarding the situation of illegally arranging for people to sell blood and forcing people to sell blood,the statutory crime shall be set higher respectively.Meanwhile,the second paragraph of Article 333 of this Law shall be revised as:"a person who organizes illegally other persons to sell blood and causes injury to another person shall be convicted of the crime of intentional injury and sentenced to fixed-term imprisonment of not less than five years and not more than ten years;and if causing another person's death shall be convicted of a crime and sentenced in accordance with the provisions of Article 232 of this Law.A person who forces other persons by means of violence or threat to sell blood shall be convicted of the crime of intentional injury and sentenced to fixed-term imprisonment of not less than ten years,life imprisonment or death;and if causing another person's death shall be convicted of a crime and sentenced in accordance with the provisions of Article 232 of this Law".Thirdly,in the legislative example of taking method of crime as transformed condition,for instance,the influence of the amount of property in theft,fraud,seizing by force on the constitution of transformed robbery,the author holds that it shall be approached in two ways:firstly,if by means of violence an actor causes another person's injury or death,shall be convicted of the crime of intentional injury or intentional homicide and sentenced;secondly,if no damage is caused, judgment of whether it is the attempted stage of theft,fraud,seizing by force shall be made.If it accords with the constitutive requisites of unfulfilled stage,it shall be convicted of attempted crimes of theft,fraud, seizing by force and sentenced;if not,then the actor shall not be deemed to be subject to criminal liability,nor shall he be convicted.Fourthly,in the legislative example of taking criminal act as transformed condition,for instance,in accordance with the provisions of Article 253 of criminal law,whether the transformation of the crime "a postal worker who opens,conceals or destroys mails or telegrams without authorization" to the crime of theft need the condition of stealing public or private property "by a relatively larger amount or for several times", the legislative prescription is ambiguous.Weighing the advantages and disadvantages,the author considers amendments made to the second paragraph of Article 253 of criminal law to maintain coordination with the provisions of Article 264 of criminal law:"A postal worker who commits a crime under the preceding paragraph for stealing property,if the damage is minor,shall be convicted of a crime and sentenced heavily in accordance with the preceding provisions;if a person who steals a relatively large amount of public or private property or steals property for several times shall be convicted of a crime and sentenced heavily in accordance with the provisions of Article 264 of this Law.The fourth part discusses the joint offence state and person under age of the transformed crime.The author holds,only on the premise that the initial crime of an actor is joint offence and contact of joint intention exists in the transformational condition can the transformed crime be constituted.Conformity of subjective content of joint intention is the substantive essence of joint offence of the transformed crime;the transformed crime is the transformation from a crime to another crime, the initial crimes that juveniles under the responsibility age for crime involved are the prerequisite to the constitution of transformation. |
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