A Research On Aggravated Consequential Offence Establishment And Penalty

It’s generally acknowledged that the aggravated consequential offence originates from one of the Cannon Law principles Versari in Reillicita. Limiting the establishment scope of the aggravated consequential offence becomes the core and guiding line of its theoretical development. Here follows the main reasons why limiting the establishment scope of the aggravated consequential offence serves as the core and guiding line of its theoretical development. The first, the tension between the aggravated consequential offence and responsibilism transmits from whether requesting the subjective crime originally to the proportionality of subjective crime and penalty establishment on the basis of committing the subjective crime. The aggravated consequential offence theory fails to solve the issue thoroughly. The second, the severe penalty of the aggravated consequential offence in the legislation requests to charge the aggravated consequential offence cautiously, thus it’s inevitably necessary to limit its establishment scope strictly. The third, the objectification tendency of the determination standard enlarges the establishment scope of the aggravated consequential offence. There are no other alternatives in terms of responsibilism and criminal policy and the theoretical research as well. The preventive criminal policy generally provides the realistic foundation to the aggravated consequential offence, while responsibilism requests to limit the establishment scope of the aggravated consequential offence. The presence of the aggravated consequential offence and the limitation of the establishment scope at the same time are the balance of legislator and integration.It’s concluded the Chinese legislation regulations on the aggravated consequential offence have three distinctive characteristics. The aggravated consequential offence in China has the following characteristics:The first, the function of judicial interpretation is highlighted in the determination of the aggravated consequential offence. The judicial interpretations expand the penal codes and enlarge the scope of the aggravated consequential offence in terms of the subjective crime and the aggravated consequences. The second, the determination of the consequence-aggravated scope focuses on the aggravated consequences instead of the subjective crime, which has reached the consensus that, the aggravated consequences of intention. The indistinct features of the consequence-aggravated forms lead to the different understandings of the aggravated consequences and further the different establishment scope of the consequence-aggravated crime. The author divides the scope into four levels, widest-sensed, wide-sensed, narrowest-sensed, and narrow- sensed. Defining the aggravated consequences as the premise of causing to injury or death, theauthor adopts the wide-sensed scope of the consequence-aggravated crime, including types ofcausing to injury or death specified in the legislation and types of serious consequences in thejudicial interpretation. The third, the biggest issue of the aggravated consequential offence crimelies in the setting of the penalty. Firstly, the connection model makes the penalty higher. Secondly,the consequence-aggravated crime in the same penalty faces the doubt of the major health and liferight and the same penalty to the different crimes. Finally, the setting of the aggravatedconsequential offence with absolute determinate penalty cancels the free discretion of theaggravated consequential offence with different circumstances and the subtraction function ofjudicial application to the higher penalty of the aggravated consequential offence.