A Study On Some Issues Concerning Omitted Crime

According to China’s Crime Code, combined punishment includes thefollowing three situations: the combined punishment for several crimes which arecommitted by the suspect before the judgment is pronounced, the combinedpunishment for omitted crime after the judgment is pronounced and the combinedpunishment for new crimes after the judgment is pronounced. From the view of thelegislative design, these three ways of combined punishments present legislature’slenient or strict attitude towards the punishment. Generally speaking, the result ofthe combined punishment for several crimes which are committed by the suspectbefore the judgment is pronounced is same to that of the combined punishment foromitted crime after the judgment is pronounced. And the punishment on the newcrime is more severe than that of the omitted crime.However, with the development of the society, many new problems and caseshave continuously emerged in the judicial practice. The stability of the legal rule isinconsistent with the variety of the social life. Through two cases’ procedures andresults, it is pointed out that the following problems existed in the identity andpunishment of omitted crime: the problem existed on omitted crime between theconfirming time and the standard; the problem on omitted crime and thepunishment which is discovered during the execution duration for the originaljudgment of life imprisonment or death penalty with2years suspension; theproblem on the punishment of the similar omitted crime; the problem on thediscovery of omitted crime and punishment during the conditional release period.Through the analysis of the above cases and problems, it can be discovered thatsome flaws on confirming omitted crime are existed in the Criminal Law, whichleads to different standards on confirming omitted crime in the judicial practice,and comes out with a variety of results. These flaws influence the authority andseriousness of the judgment of the People’s Court. Currently, in the judicialpractice, the punishments for the same kind of omitted crime may be inconsistent with sentence. If the omitted crime is discovered during the execution duration forthe original judgment of life imprisonment or death penalty with2yearssuspension, the following conditions may be appeared in the punishment,repeatable evaluations on the same criminal case, descriptive imbalance of thecriminal law and injustice performing of the penalty. As reasons led to the omittedcrime are not distinguished, omitted crime committed by the suspect but notidentified by the legislature is discovered during the conditional release period. Iftheir conditional releases are repealed, it may have a negative effect on criminals’reformation. The above three cases of omitted crime punishment violates theobjectives of the criminal penalty, principles of convictions and crime adaptability.Through the analysis and the experience of the judicial practice, the followingsuggestions are proposed to improve the confirmation of the omitted crime:modifying the declaration judgment stipulated in the Article70, Article77andArticle86of the Criminal Law to effective judgment in order to avoid theambiguity; the word “discover” stipulated in the Article70, Article77and Article86of the Criminal Law are explained judicially to ensure that the discovery timeof the omitted crime is the time when the procuratorial organs take a legal action,and the discovery time of the private prosecution is the time when People’s Courtsentences the omitted crime of the defendant. It will realize the unification ofdiscovery standard and the discovery time of the omitted crime, which isconvenient for the operation of the Justice Department. To perfect the punishmentof the omitted crime, this paper makes a contrast on the history, the stipulationshome and abroad and views. It is founded that Professor Zhang Mingkai’s viewthat adopts the combined punishment as the principle and the uncombinedpunishment as an exceptional could avoid an amount of sentencing imbalancecases. In terms of the omitted crime punishment of death sentence with reprieveand life imprisonment, it is suggested that different methods are adopted accordingto the measurement of the penalty in order to solve the descriptive imbalance ofthe criminal law on the omitted crime punishment and the repeatable evaluation,the comparison on the omitted crime punishment and the punishment on the newcrime, the problem on sentencing imbalance and the lenient or strict attitudes. In terms of the reasons of the omitted crime, initiative omitted crime should bedistinguished with passive omitted crime. If the passive omitted crime is caused bythe judicial office rather than the criminal, punishment should be different in linewith the principle to realize penalty’s objectives and reform criminals.