Research On The Principle Of Punishment Of The Imaginative Jointer Of Offenses

Imaginative Jointer of Offenses, also called the jointer of imaginative plural crimes and concept, refers to the behavior which violates several charges. The general punishment principle of imaginative jointer of offenses holds an important place in the academic circle, and it matters a lot to the application of juridical practice. However, there is no particular rules in Criminal Law for the general punishment of imaginative jointer of offenses, only some clauses and stipulations of judicial explanation can be consulted, which have been taken as specific punishment principle by scholars. Among them, some require to convict and punish according to the stipulations with heavier punishment, such as article 133 of Criminal Law, which announces the punishment of dangerous driving which leads to other crimes; some articles suggest severe punishment according to the stipulation which gives more severe punishment, such as article 307 of Criminal Law on the punishment of false lawsuit; and some rules requires cumulative punishment, for instance, article 204 of Criminal Law. Besides, judicial explanation also gives us lots of particular punishment principles on the imaginative jointer of offenses. Worthy of special version, criminal law amendment(9) alone offers 8 similar particular punishment principles, some of which suggests punishment observing the more serious crime and some suggests severe punishment according to the heavier crime. The variation of the establishment of punishment principles leads to the alteration of the understanding of the general punishment principles.Theoretically, there are 3 main ideas on the general punishment principles of imaginative jointer of offenses. Among them, the principle of punishment observing the most serious crime prevails for ages in the theoretical circle and the practice circle. Yet, the principle of severe punishment according to the heavier crime and the cumulative punishment principle prevail in recent years. It is widely believed in the academic circles that severe punishment according to the heavier crime should be adopted, and to a certain extent, they think it is the final conclusion. While, punishment observing the more serious crime which is the general point has been criticized as it could not evaluate the behavior comprehensively, and might break the balance of crime and punishment. So, in conclusion, at this stage, the re-combing of the three principles is of great practical significance.Chapter 1 queries the points of cumulative punishment principle. This chapter demonstrates that the imaginative jointer of offenses is one crime as a whole. Adopting the appropriate mainstream point, the crime constitution theory as the criteria to judge the quantity of crime, we queried the point that the imaginative jointer of offenses was plural crimes in nature. First, considering the illegality and the imputability, the imaginative jointer of offenses is different from plural crimes; secondly, judging one behavior as plural crimes violates the principle of prohibition repeatable evaluations; thirdly, the application of reduction of absurdity proves that the nature of the imaginative jointer of offenses is not plural crimes but one crime, which negate the theoretical foundation of cumulative punishment. As for the dilemma of which can be solved effectively by cumulative punishment can also be solved by the method of Gunther Jakobs, a German scholar of criminal law. He suggested that we can punish two independengt crimes according to the nature, and then punish it along with the crime applying the severe punishment, according to punishment principle of imaginative jointer of offenses.Chapter 2 mainly queries the point of those who support the principle of heavier punishment on basis of the most serous crime. From the conflict between the principle of prohibition repeatable evaluations and comprehensive evaluation principle, we demonstrated the priority of the principle of prohibition repeatable evaluations, which also means the principle of heavier punishment on basis of the more serous crime can not be applied. The stress of the former of traditional criminal law idea has leaded to lots of human rights violation. Hypercorrection is needed to reach the balance. Thus, the modern law should pay more attention to the priority of the no-repeated evaluation principle. And, the prohibition of repeated evaluation, from the principle of legally prescribed punishment, should grasp the priority. The statement of specific article is mostly “consult to the severe conviction and punishment”, while punishment according to more serious crime or heavier punishment have not been mentioned. According to the principle of no punishment without express terms, the opinion of taking legal interest invasion of minor offense as the circumstances of sentencing is untenable. When comes to the punishment of the imaginative jointer of offenses, the priority of the principle of prohibition repeatable evaluations should be assured, which means severe punishment according to the heavier crime is not appropriate. The severe punishment according to the heavier crime is not appropriated to be applied and we pointed out three technical obstacles. First, there is no objective standard for the principle, which may results in wide variation of the conviction and punishment on the same case, which may what’s worse jeopardize the authority of the law; secondly, if there punishment is the maximum punishment, the principle of the heavier punishment can not be applied; thirdly, the application of heavier punishment on basis of the most serious crime may possibly leads to over-sentencing, which violates the principle that the punishment should accord to the crime.Chapter 3 defined the principle of heavy punishment again and stick to reasonability. The supporters of other points insist that the principle of heavy punishment may violate the principle that the punishment should accord to the crime. We rebuilt the connotation of the heavy punishment principle and unscrambled the standard terms and thought the principle of heavy punishment do not include the heavier punishment. On the one hand, when the conviction has been done, both the heavy punishment and the heavier punishment will violate the principle of prohibition repeatable evaluations; on the other hand, the article of specific provisions of China Criminal Law has given the rules of both punishment observing the more serious crime and the rules of severe punishment according to the heavier crime. Considering the systematic logic, the former can not include the punishment observing the more serious crime. Then, we interpreted the reasonability of punishment observing the more serious crime on basis of subjective responsibility theory, objective illegality theory and the one behavior standpoint. At last, we defined the judicial application again. First, we agree to take the declared sentence as the comparison standard of division of heavy offense and minor offense,i.e. the “method of conviction and comparison”. Legislation has no express terms which method it can be applied to, the declared sentence and comparison theory can be used; the declared sentence and comparison theory conforms to the substance of the setting of imaginative joint offenses; the principle of the punishment should accord to the crime prevails the principle of lawsuit benefit principle; there is no mandatory standard for declared sentence and comparison theory, which is illogical and may leads to deviation and abuse. Secondly, the minor offense and the accessory punishment can not be applied together. The wording of Criminal Law article negated the application of minor offense and accessory punishment; the negative theory conforms to the opinion that imaginative jointer offenses is one crime in nature; the affirmation theory violates the principle of prohibition repeatable evaluations. Thirdly, the prosecution of complaint is supposed to be confined by “complaint crime”,but not by the statement of the facts.