Plural Crimes Of A Kind Shall Have Concurrent Punishment Before Judgment

Plural crimes of a kind refers to such circumstance that the perpetrator implements plural crimes with same nature for several same guilty intent or negligence,and violates provisions of the Criminal Law on a same crime.The plural crimes of a kind belong to the scope of several crimes,and shall be treated in accordance with principle of cumulative punishment as stipulated in Criminal Law,but there are three different viewpoints on plural crimes of a kind before judgment in the theoretical circles.The common viewpoint occupying the theoretical and practical circles for a long time is “a punishment theory",that is,plural crimes of a kind shall be punished according to a crime.The second viewpoint is "a compromise theory",that is,plural crimes of a kind shall be divided into several crimes without combined punishment and several crimes with combined punishment.The third viewpoint "combined punishment theory",that is,plural crimes of a kind shall be punished together with plural crimes of different kinds.As these three theories have their advantages and disadvantages,it argues that combined punishment for several crimes shall be selected as the punishment principle for plural crimes of a kind after all factors are weighted,in combination with development trend of research on criminal law theory and on the basis of problems reflected in judicial practice,taking fair value of sentencing as the core,and taking the purpose of punishment as the guide.This article can be divided into four parts apart from the introduction,with a total of over 46,000 words.Part one: An overview of the basic problems of the plural crimes of a kind.At first,it defines concept and characteristics of the plural crimes of a kind,and then introduces concept,feature and theoretical development of successive offenders,implicated offenders and absorbed offenders belonging to one crime in sentence.It is not limited to the framework of the plural crimes of a kind itself,but rather conduct comparative analysis of the plural crimes of a kind and other criminal patterns which belongs to plural crimes in nature but be punished according to one crime,so as to clear essential difference between the plural crimes of a kind from one crime in sentence,and put forward that the punishment principle of one crime in sentence is not applicable to the plural crimes of a kind.Part two: the basic investigation on punishment system of the plural crimes of a kind.At first,it introduces the current situation and development trend of legislation on the plural crimes of a kind outside the country,so as to make reference to our legislation and justice.The article pointed out that the common practice is to perform combined punishment for several crimes except that a majority of countries applies “one punishment” for several crimes.To some extent,the position that Chinese mainland stands on “a punishment theory” of several crimes,can be described as one "creative" punishment in the world.Second,it is investigation on legislation and judiciary of the punishment system for the plural crimes of a kind in China.In the legislation,although there is no clear provisions,it can be inferred from some legal documents and judicial interpretation that our legislation is more inclined to combined punishment for several crimes.In the judiciary,"a punishment theory" also occupy a general position,but because there is no clear legal provisions,some judges will still give combined punishment for several crimes,so that there appear contradictory phenomenon in the judiciary.In addition,it concluded through case collection and comparative analysis of the plural crimes of a kind and the plural crimes of different kinds,that it would be more favorable for criminals if the plural crimes of a kind is punished according to one crime,instead of combined punishment.This also makes the public doubt that the judiciary is in favor of criminals.Part three: This section summarizes the three species of about the principle of combined punishment for several crimes,and explores theoretical basis that the plural crimes of a kind shall be performed with combined punishment for several crimes.This is the core chapter of this article.First of all,it summarizes and explores the theoretical controversy about the principle of combined punishment for several crimes,and puts forward its own opinions and reflection on each viewpoints of “a punishment theory” and “a compromise theory”.Then,it explores theoretical basis that the plural crimes of a kind shall be performed with combined punishment.It mainly demonstrates from three aspects: to comply with the coordination of the internal system of the Criminal Law,the impartiality of the judicial sentencing and the effective realization of the criminal penalty.Only combined punishment is performed for the plural crimes of a kind,can internal logic of criminal law system be satisfied,can the fair and equitable value function contained in the Criminal Law be better reflected,and can the purpose of the criminal penalty be better achieved.Moreover,in order to make the theoretical basis of the plural crimes of a kind be more reasonable,this article responds and explains the viewpoint questioning or against the combined punishment within its frame,and proposes that although the combined punishment can not be perfect,it is the most comprehensive punishment principle after the pros and cons of various theories are balanced.Part four: Construction of the principle of combined punishment for several crimes.First,it determines the scope of the plural crimes of a kind.On the one hand,because there are special provisions on the plural crimes of a kind under some special circumstances by the law,it shall not be within the scope of the combined punishment for several crimes;on the other hand,it may define the boundary of the plural crimes of a kind by clearing the difference between successive offenses and the plural crimes of a kind.Secondly,it proposes that the provisions on confession of the plural crimes of a kind shall be modified,because such judicial interpretation excludes the plural crimes of a kind from confession,which is contrary to the purpose of the confession system.After combined punishment has been made for the plural crimes of a kind,the confession of the plural crimes of a kind shall be naturally included into the confession.Thirdly,it puts forward that the principle of combined punishment for several crimes shall be reinterpreted.Because most doubts for “combined punishment theory” of several crimes resulted from the combined punishment for several crimes may cause the judicator ignores the unity of personality behind the plural crimes of kind,and possible relevance of several crimes.In fact,the arguer only viewed the separation when several crimes are sentenced respectively,but ignored comprehensive consideration process during combined punishment for several crimes.After the principle of combined punishment for several crimes is sentenced respectively,there still are “discretionary” comprehensive consideration process.Thus,it shall define specific factors of discretion,as a result,it can be customized based on different cases among several crimes,and then a judgment most suitable for crimes can be made.