The Research Of Overlap Of Criminal Law Articles And Its Principle Of Application

Overlap of criminal law articles, a historical and fierce problem in criminal law theory, is a legal phenomenon with the emergence of criminal legislation. All along, the domestic and foreign scholars have never stopped to study overlap of criminal law articles. Controversy about overlap of criminal law articles mainly focuses on three aspects: the range, the types and the applicable principle of overlap of criminal law articles. The ultimate goal of researching overlap of criminal law articles is to solve the problem of how to choose and apply articles. However, theoretical controversy on the issue has brought confusion for the judicial application. On the basis of domestic criminal legislation and combining theoretical research results at home and abroad, this paper attempts to sort out and research related issues about overlap of criminal law articles for further reflection, and then produce a more clear understanding of overlap of criminal law articles on the whole. The article is divided into the following fore main parts:The first part focuses on the concept of overlap of criminal law articles. Frist of all, I compare various definitions of overlap of criminal law articles from many countries. And then I discuss the theoretical property and have a deep analysis on the specific features of overlap criminal law articles, hoping to redefine a right concept of overlap criminal law articles.The second part focuses on the distinction between overlap of criminal law articles and imaginative joiner of offenses. Although overlap of criminal law articles and imaginative joiner of offenses have some similarities, there are essential differences between them. How to distinguish overlap of criminal law articles and imaginative joiner of offenses relates to the range of overlap of criminal law articles, so it is necessary to distinguish them. There are many kinds of doctrines about sub-sector standard between overlap of criminal law articles and imaginative joiner of offenses, including essential difference say, statute relations say, elements of crime say, object distinction say and full commented say. After the comparative analysis, I think that full commented say is more reasonable, which better reveals the essential difference between overlap of criminal law articles and imaginative joiner of offenses.The third part focuses on the types of overlap of criminal law articles. First of all, I research the traditional classification of overlap of criminal law articles in Germany, Japan and domestic criminal law theory, finding that the division is unscientific and there is multiple criteria for the classification. The main reason is that the range of overlap of criminal law articles is not clear and the division is lack of uniform and scientific standard. The author believes that overlap of criminal law articles can be divided from two points: epitaxial and content. From the epitaxial point of view, overlap of criminal law articles can be divided into inclusive relationship and intersection relationship, revealing different external manifestations; from the content point of view, no matter the inclusive relationship or the intersection relationship, all competing law articles can be seen as the relationship between special law and general law.The forth part is about the applicable principle of overlap of criminal law articles, which is based on the classification of overlap of criminal law articles. However, views of the applicable principle of overlap of criminal law articles in theoretical circles are uniform, resulting in the confusion of judicial application. I believe that the applicable principle of overlap of criminal law articles should be established on the basis of ban-repeat evaluation and comprehensive evaluation. In general, the article which can more comprehensively evaluate the crime should be chosen preferentially, namely special law is better than general law. When the article more comprehensively evaluating the crime leads to abnormal light punishment in exceptional cases, the article which can reflect the principle of suiting punishment should be applied preferentially, namely heavy law is better than light law. For the question of how to recognize the special law, I believe that the article which can more comprehensively evaluate the object violated by each crime, is the special law that can more comprehensively evaluate the crime act. Although I take the principle “heavy law is better than light law” as complementary principle, I don’t deny this principle should be strictly limited within a specific range. For the question of how to recognize the heavy law, I believe that the comparison of severity of the penalty should take the legal punishment not the declared punishment as the standard.