| Circumstance-aggravated Offenders refers to a sin that if the circumstances are serious or on the baseof the benchmark sin there are some serious circumstances, it’s objective damage and subjective malignantbeyond the benchmark sin, which should increasing the degree of punishment according to law. Now wefollow the concept of Crime balance, generally install two or three crime unit according to the differentsocial damage, it’s the performance of Circumstance-aggravated Offenders in legislation.Circumstance-aggravated Offenders is very complex, it involve the basic theory of criminal law, whichinclude the theory of constitution of a crime, theory of attempted offence, theory of crime quantity and soon, and in our criminal law, there are many abstract Circumstance-aggravated Offenders, the aggravatingcircumstances is so abstract, most of them expressed as "in serious cases" or "offence of vicious", whichwas difficult to ruled in judicial practice, therefore, research of Circumstance-aggravated Offenders inmulti-perspective and in different levels not only help to rich the deterioration of the theory of constitutionof a crime, and help to increase the cognizance of the aggravating circumstances and the judgment of thequantity of the crime. Also, it can guiding judicial practice better, in order to fully implement thepunishment in keeping with the principle and the realization of criminal law the values of fairness andjustice.This article, besides the introduction and conclusion, which can be divided into the following fiveparts:Part1: Circumstance-aggravated Offender’s concept and characteristic. This part first lists differentunderstandings increased concept of Circumstance-aggravated Offenders in criminal law theoretical circle,I make an analysis of the different views respectively, sun up their merits and demerits respectively, then onthe base of the analysis, I put forward my own plot of this question. At the same time, I make a distinctionbetween Circumstance-aggravated Offenders and other relational conception such as the circumstancecrime and aggregated consequential offense in order to understand the connotation and denotation ofCircumstance-aggravated Offenders more deeply. Secondly I introduce the basic characteristics of the Circumstance-aggravated Offenders, including the premise feature, the form feature and the legalcharacteristics: the premise feature of the Circumstance-aggravated Offenders is the perpetrator implementa basic crime, the form feature of the Circumstance-aggravated Offenders is the criminal behavior has plotof the exacerbation, and the legal characteristics of the Circumstance-aggravated Offenders is there arestipulation in the criminal law.Part2: the constitution of Circumstance-aggravated Offenders. The Circumstance-aggravatedOffenders has two sections, basic crime and aggravating circumstances. The basic crime can be artscommitted, consequential offense, the circumstance crime, intentional offense, fault committed and so on.To the nature of the Circumstance-aggravated Offenders, there are different views, the focus of the disputeis that, aggravating circumstances is convictive circumstances or penalty circumstance or both of them.This part introduces three kinds of the theory basis of three kinds of theories respectively and tries toreview, and then I put forward my own point of view: aggravating circumstances is convictivecircumstances and expounds them in detail. Aggravating circumstances of the Circumstance-aggravatedOffenders is a kind of comprehensive index, it’s abstract in legislation, but in judicial practice it needcomprehensive series of main, objective facts be considered, and how to find is a judicial existing problemsin practice, I put forward my opinions.Part3: the criminous modality of Circumstance-aggravated Offenders. This part first introducedunaccomplished and crime quantity of Circumstance-aggravated Offenders. By comparing differentacademic point of view, I think the unaccomplished exists. For the existing of Circumstance-aggravatedOffenders based on basic committed, the unaccomplished of Circumstance-aggravated Offenders wasinfluenced by the accomplished and unaccomplished offense of basic crime. When a criminal behavior hasaggravating circumstances but the basic crime was unaccomplished, now the behavior will constituteunaccomplished of Circumstance-aggravated Offenders. Circumstance-aggravated Offenders is a sinessentially, may be a sin of the essence, legal or on the fault, as for the criminal law itself constitutesanother crime as a plot of the plot of the increased aggravating make special legislation is also a sin.Part four: Circumstance-aggravated Offenders of other foreign legislation. This section describessome other legislation such as the Germany, France, Russia, Italy, Japan and other countries. Through thecomparative analysis, can sum up the superiority of these countries legislation: one is make general provision in the criminal law to make up the imperfection, two is make the rule ofCircumstance-aggravated Offenders more clear and definite in the branch of criminal law, these superiorityof these countries legislation are worth drawing.Part5: Legislative perfection of our criminal law. This part first introduced three legislation mode ofour country: the general legislation, the list legislation and the mixed legislation. Then made a comparitionamong the three legislation mode, then according to the problems existing in the our legislation, throughthe description of the theoretical analysis and the legislation of foreign advanced, then raise legislativesuggestions of our country. In order to make our legislation more perfect. |
