The Study On The Provision "Shall Be Convicted And Punished In Accordance With Heavier Penalty"

The provision “Shall be convicted and punished in accordance with heavier penalty” is distributed in four clauses and a number of judicial interpretations, about which the disputes never end. With the completion of the basic system of criminal law, the theory of criminal law has shifted from the criminal legislation science to criminal doctrinal theology; therefore the use of appropriate interpretation methods for the controversial provisions to reach a justified conclusion has become a target worth scholars’ efforts. Based on this provision stipulated in some specific clauses of criminal law and judicial interpretations, this paper attempts to define crime patterns of these relevant clauses in order to provide the theoretical perspective in the judicial application. On the other hand, this paper tries to illustrate the reasons for the legislative stipulation of this provision to find the logic and jurisprudence behind, also tries to find out whether this provision can apply to other similar or identical terms for the better judicial application. Disputes concerning the interpretation of this provision are mainly about the specific clauses and are based on the crime number theory. This significance of this thesis is to systematically clarify and explain the theoretical bases for the interpretation of this provision “Shall be convicted and punished in accordance with heavier penalty” in the hope to solve the disputes and be able to grasp the essence of different terms to provide standards and grounds for the application, thus to poke its mystery. The arrangement of chapters follows logic and jurisprudence.This paper is divided into four chapters, in addition to the introduction and concluding remarks. The introduction part gives the background and disputes concerning the provision, proposing the solution of these disputes shall primarily be established on the normative understanding of these provisions.Chapter one is a preliminary sorting of the provision “Shall be convicted and punished in accordance with heavier penalty”, including its normative meaning analysis and the classification and integration of clauses and judicial interpretation concerning this provision. This part will logically analyze the deep normative meaning of this provision through the retrospective of adaptation of crime and punishment principle and repeat evaluation prohibition principle and legislative technique science. The real face of this provision will be given through the sorting of the clauses concerning this provision.Chapter two systematically discusses the relations and differences between the crime number theory and crime concurrence theory by giving two tables for the demonstration of steps and standards for the judgment of these two theory systems, clarifying the shift of crime number theory to crime concurrence theory. This part also focuses on the judgment process of specific from of crime concurrence, distinguishing different crime concurrence theories.Chapter three uses crime concurrence theory to theoretically analyze the provision “Shall be convicted and punished in accordance with heavier penalty”, including other relevant offenses, forms of norms and its nature.Chapter four is about the specific application of this provision, mainly working on application of the “heavier punishment”. Based on the references of extraterritorial legislation, this paper tries to narrow down the applicable scope of this provision and summarize the experiences of foreign judgment documents writ in order to provide theoretical support for China’s reform of judgment documents writ.Concluding remarks try to summarize the reasons for the legislative stipulation of this provision and give a systematic and holistic knowledge of this provision through above multi-angle argument.