The Research Of Lapping Of Legal Provisions In The Criminal Law

Lapping of Legal Provisions is a common phenomenon in criminallegislation,but also a fierce criminal law theory. Lapping of Legal Provisionscontroversy mainly focuses on two aspects：the types of Lapping of LegalProvisions and the applicable principles of Lapping of Legal Provisions.Theoretical circles on this issue has long been controversial, a direct result is theconfusion in the judicial application. Lapping of Legal Provisions under the lawbar to choose has always been plagued theorists and Practice sector. This paperattempts to reinterpretate some related issues to Lapping of Legal Provisionsfrom a new angle, and then put forward my views and ideas, especially about theapplicable principles of Lapping of Legal Provisions, I have some differentinsights of scholars in the past and want to be able to lead the thought andattention of the criminal law field. The article is divided into the following threeparts discusses:The first part discusses the basic theory of the Lapping of Legal Provisions.First of all, on the basis of the summary and analysis of Chinese and foreign various definitions, I redefine the concept of Lapping of Legal Provisions, andclearly point out the theoretical property of the Lapping of Legal Provisions.Secondly, I point out the causes of Lapping of Legal Provisions from the normsand technological levels, reveals in-depth the essential connotation of theLapping of Legal Provisions. Finally, I have a deep analysis of the characteristicsof the Lapping of Legal Provisions, hoping to have a more in-depth andcomprehensive understanding of the Lapping of Legal Provisions.The second part is about the types of Lapping of Legal Provisions. Thetraditional view often has following question when dividing Lapping of LegalProvisions: or there is no clear criteria for the classification, or it has multiplecriteria for the classification. It is not conducive to understand and analyze. Theauthor believes that Lapping of Legal Provisions can be divided from the twoaspects: Epitaxial and content. From the Epitaxial point of view, Lapping ofLegal Provisions should be divided into inclusive relationship and Intersectionrelationship; from the content point of view, all competing law can be dividedinto the relationship between special law and general law. Epitaxial divided issimple and clear, can reveals the different forms of Lapping of Legal Provisions；connotation divided can easily reveals the nature differeces of law, we cananalyze the respective advantages and disadvantages of the various legal barwhen evaluating the same behavior. It can apply solutions when choosing laws.The third part is the core of this article, the applicable principle of Lappingof Legal Provisions. Views of the applicable principles theoretical circles are notuniform, and there is no expressly regulation to guide this problem, which is theroot cause of the judicial application of chaos. I believe that the Lapping of LegalProvisions Act should be chosen to follow the principle that is to see what kind ofordinance is most comprehensive when evaluating the crime. Based on thistheory, I think that comparing with the general law, special law are more specificand fully in the criminal connotation of the provisions. It is the mostcomprehensive and full assessment law when judging a crime act, so Lapping ofLegal Provisions shall apply to the special law. For the question of how to determine special law, I think that can be determined from the interests of thecommunity and the objective aspect. At the end of the article, I also focuse onthe highly controversial principle “heavy law is better than light law” I think thisprinciple should not be applied because it has no legal reason.