A Brief Analysis Of The Criteria And The Application Of Penalty In The Imaginative Joiner Of Offenses And The Overlap Of Articles Of Law

The imaginative joiner of offenses and the overlap of articles of law are part of the complex issues in China's criminal law,which also occupies an important position.There are too much controversies about the distinguish standards of them.Many criminal law scholars proposed different theories,which have their own advantages and limitations.According to many previous views,the author puts forward some views for them.In addition,it is necessary to discuss further about the specific sentencing issues,which undoubtedly has a crucial role on both theory and judicial practice.This paper is divided into two parts.The first chapter mainly introduces the concept of the imaginative joiner of offenses and the overlap of articles of law,and the differentiation methods between them.First of all,this thesis analyzes the concept and characteristics of imaginative joiner of offenses,especially make a detailed analysis of the nature and number of the behaviors and the form of subjective criminal.The author believes that the behavior of the imaginative joiner of offenses have many meanings for criminal law,as well as analysis of this theory does not conflict with the "prohibition of repeated evaluation principles".In the aspect of subjective,the author advocates a variety of sin.The second,the concept and characteristics of overlap of articles of law are analyzed and compared with imaginative joiner of offenses intuitively.The third,based on analyzing the concept and essence of them two,this part shows the existing main theory about the distinguish standards between them,such as the law relations,the elements of the crime,the object and the whole evaluation.Analysing the advantages and disadvantages of each doctrine,and with practical examples to prove that the existing doctrines can not solve the problems quickly.In fourth quarter,on the basis of the existing doctrines,the author puts forward his own distinction standards,which discuss the distinction standard combined with the theory of behavioral distinction and the theory of legal interests,and verified with examples.The second chapter mainly solves some problems after distinguishing these two theories,which is the specific application of the penalty.For the first part of second chapter,the author analyzes the application of punishment for the imaginative joiner of offenses.The author thinks that,from the behavior,the crime,the result and so on,there are lighter than several crimes.Therefore,they should not be combined punishment for several crimes.In the second section,it discusses two specific cases when analyzing the penalty foroverlap of articles of law,for example,the problem of punishment when special law is lighter than common law,and whether the application of common law can be applied in accordance with the special law but does not meet the special law.The author believes that these two theories should be regarded as a problem in essence,it is necessary to abandon the thinking of "heavy doctrine" and follow the basic principles of "criminal law" when discussing this issue.It is important to analyze from multiple perspectives to make a reasonable explanation.