The Research On Continuing Offence

The continuing offence is one of the important contents in the form of the crime's quantity. The general theory regards continuous offence as one crime of judicial. The theory of continuous offence originated in Italy, developed in Germany and Japan. It's initial purpose of creation is that because of the Combined punishment to the behavior of several criminal acts that based on the same intent to commit is too harsh, the creation is in order to sentencing is more reasonable. The theory of continuous offence law is unique to the civil law system, and the introduced to the criminal law in late Qing Dynasty and Continue until now. With development of continuous offence theory, because the defect that the concept is not clear, in order to pursue efficiency and abuse in judicial practice, disputes in crime proceedings caused by regarding as one crime and other defects, continuous offence have been abolished in Germany, Japan and China's Taiwan region, namely delete continuous offence's concept in the code, but in theory and in practice still admits continuous offence. China's criminal law has not clearly defined the concept of continuous offence, but there are still many scholars advocate the abolition of continuous offence, in the academic community caused no small controversy. is controversial. The main reason of controversial of continuous offence is the unclear understanding of the nature of the quantity of crime in essence and theory, so the in-depth research of continuous offence has strong theoretical and practical significance.In addition to the introduction and conclusion, this paper is divided into the following four parts:The first part is the summary of continuous crime. Firstly, the paper introduces the evolution of continuous offence, tells the development history of continuous offence theory in Germany, Japan and other foreign countries (regions), Germany the firstly set the clear concept of continuous offence in “Bavaria Penal Code” in 1813, Under the influence of German criminal law, Japan also stipulated continuous offence in the criminal law of 1908; and the history of our country, China's Taiwan region abolished continuous offence in 2005, criminal law of mainland although there is no clear concept of continuous offence, but continuous offence has existed and been discussed. Then the part analysis the nature of continuous offence, several influential theory in academic circles has been introduced, including the theory of plural crimes, said that the nature of continuous offence is several crimes, it should be concurrent punishment for plural crimes. The theory of essential one crime, said that although the continuous offence has a few features with the number of crimes in appearance, but it is still one crime in essence, the theory of including one crime, said that continuous offence is included in one crime according with the elements of evaluation of crime; the theory of one crime of judicial, said that the behavior of continuous offence constitutes several crimes, but because of its inherent characteristics, regard as one crime in the penalty. One crime theory is main point of view to the nature of continuous offence. Above a few kinds of view, the theory of plural crimes can not be established because of continuous offence subjectively based on the same or generalization of criminal intent, and there is continuous relationship between the behavior of the objective. The theory of including one crime is insufficient because it still evaluated number implementation behavior separately and description is too general. The theory of one crime of judicial evaluated number of crime with the judicial practice standard,it consider continuous offence is still separated in essence, therefore in from the perspective of the nature of crime number is not scientific. The theory of essential one crime can reveal the nature of crime number of continuous offence in essence, the criminal intent of continuous offence in subjective aspect is to be unified, the several behaviors in objective aspects are in close succession relation, so it should be one crime in essence. Since continuous offence is one crime in nature, so in the following discussion of disputes for saving or abolishing of continuous offence, after the introduction of the reasons and opinions of the theory of saving and abolishing, the paper countered the views of abolishing from the essence of crime number. The reasons of abolishing continuous offence in Germany and Japan and other countries does not exist or can be solved in our country, and continuous offence has the basis of producing litigation economy and the realization of justice. The theoretical solution of continuous offence can be resolved through the clear number of crimes essence and concept etc.. Continuous offence not only necessary to abolish, it has important significance to in-depth study of continuous offence theory for the judicial practice of our country, including solving limitation of prosecution, jurisdiction, trial, leakage of crime and over the problems such as the old and the new law etc. which caused by the continuity of the behavior of continuous crime that often appear in judicial practice.The second part is the concept and features of the continuous offence. In this part, the paper first of all introduce different concepts of the current academic influential grouping in accordance with of elements of different emphasis, including concept emphasizing subjective aspects, concept emphasizing violated the same legal interest, concept emphasizing each behavior satisfy crime independently and concept of different understanding of violation of the same crime. Some emphasis contain of these concepts is necessary to continuous offence, such as the subjective aspects, satisfy crime independently and violation of the same crime, and some of them are not necessary for the proper meaning of the concept, such as violation of the same legal interests. After analysis of these different concepts, the author puts forward the concept of continuous offence can be expressed as: behavior commit several acts that can satisfy crime independently based on the same or general criminal intent that committing the same crime. Based on the concept of continuous crime, this paper then discusses the features of continuous offence, based on the conditions of continuous offence. These features mainly include: people put damage behavior based on the same or generalization of criminal intent, namely continuous offence's subjective aspect is only intentional, but not negligent, and the crime intent is same or generalized; the people implements a number of crime acts, the complex nature of the objective aspect of the continuous crime is an important feature of the behavior; there is continuity between a number of behaviors, namely a number of implementation behavior connect to the formation of one crime in essence is rely on the continuous relationship, there are three theories concluding subjective, objective and compromise of the standard for judging the continuous relationship, the subjective theory advocate relying on the behavior of people to commit a crime when the meaning or determination of a single standard as a continuous relationship exists, the objective theory advocate according to whether there is objective connections between every act, and then to decide whether the number of behavior is consistent, he compromise theory advocate that continuous relationship should be combined with the behavior of people that the subjective and objective factors. The author thinks that the subjective theory, objective theory both have lost a one-sided for the identification of continuous relations, compromise is desirable, there will be no problem exist of repeatable evaluation; acts must be committed the same crime, for the same crime should be identified according to the standard to determine.The third part is the identification of continuous offence. This part analyze continuous offence's issues identified mainly from the three aspects: first, the difference between continuous offence and related crime number form, as an important part of forms of offense numbers, continuous offence has many similarities with the related crime number form. There is also a distinction, the paper separated continuous offence and the combinative offence, gathered offense, implicated offense, creep offense etc. from The nature of crime, constitutive requirements and criminal responsibility, in order to clarify the nature of continuous offence. The second is discontinuing form of continuous offence, there are three kinds of continuous offence as Attempt, suspension and preparation, because continuous offence has multiple implementation behavior, it is possible to be behavior discontinuing form in three situations, accomplishment of part behaviors, or all of the behaviors in the discontinuing form. At this point the punishment should be divided into situation, such as regard the part of discontinuing form as circumstances of sentencing. The third is the joint crime of continuous offence, the paper discuss organizing offender continuous offence, the instigator of the continuous offence, help make continuous crime and common crime continuous offence in accordance with the division of labor, it should punish as principal criminal for organizing offender and instigator and help make should be in accordance with the role, comparing with principal criminal, and the common criminal should be punished according to their respective roles.The fourth part is the criminal responsibility of continuous offence. For continuous offence's criminal responsibility, how to determine the penalties, there are different views such as punishment as one crime, punishment as one crime severely, punishment as one crime aggravating in academic circle. Since the author agree that continuous offence is one crime in essence, so I can't agree the punishment as one crime,and the views of punishment as one crime severely and aggravating are desirable. But it needs to make restrictions in order to realize the principle of suiting punishment, namely the punishment must be severely and can be aggravating. Which means the punishment principle of continuous offence should be punished as one crime, within the range of statutory penalty shall be given a heavier punishment or can be given a aggravated punishment.