The Study On The Legal Fiction Type Of Intentional Homicide

The provision, “causing death, be convicted and punished as intentional homicide” exists in Article No.238, Section 2, No.247, No.248, No.289 and No.292 in criminal code. There has been dispute concerning the legal nature of these provisions in theory and practice. Theoretically, there has been the division between transform type of intentional homicide based on the transform offender theory and legal fiction type of intentional homicide based on the legal fiction theory. In practice, the ambiguity of the legal nature and the absence of crime construction lead to the unfair conviction and punishment, damaging the coherence of legal order. For example, there exist different conviction and punishment for the similar cases. These incoherent judicial judgments certainly threaten the rights of the defendants. And different interpretations of the provision not only influence the judicial judgment, but also affect the burden of proof for prosecution and the severity of punishment for defendants. Therefore, this paper will try to establish the legal fiction type of intentional homicide theory based on the legal fiction theory to provide a clear clue for judicial judgment.This paper analyzes the legal fiction type of intentional homicide from jurisprudence aspect and judicial application aspect. From the jurisprudence perspective, this paper is intended to point out the deficiencies of transform type of intentional homicide and advocate the legal fiction type of intentional homicide established on the legal fiction theory on the basis of the fully analysis of the relevance and distinction between the transform type of intentional homicide and legal fiction type of intentional homicide. There has been theoretical doubt concerning its legitimacy, legal nature and legal fiction type. So it is of significance to elaborate on the legal foundation, distinguish it from imaginative joiner of offense, aggregated consequential offense and absorption offense, and categorize these provisions into different legal fiction types in order to better grasp its connotation and extension. In judicial practice, crime constitution is the prerequisite for judicial judgment, so it is necessary to introduce the special constitution of legal fiction type of intentional homicide in accordance with the objective offense and liability offense dichotomy system. The objective offense elements include discussion on the behavior, result, and casual relationship; the subjective liability element mainly is about the “fiction malice”. Its divergence with the intentional homicide and intentional injury(death result) are also to be specified. Then this paper chooses two difficult problems in practice to provide the viable solution. It is intended to justify that person of relative capacity for criminal liability could be responsible for legal fiction type of intentional homicide; and to determine the liability when there is surplus behavior.