The Research On "Punishing According To The Heavier Crime"

China's current criminal code does not have a form of crime applicable to the principle of “Punishing according to the heavier crime”,but for theJoinder of offenses,implicated offenseand imaginative joinder of offenses,this principle is widely used by the judicial practice.The controversy continues in academic circles about the boundaries,essence and other related disputes of the three types of crime,but the provisions of the law itself and its connection with the judicial practice,there is little mention.The article is based on the provisions of the 11 legal provisions and the provisions of the 50 judicial interpretations which regulate “convicted in accordance with the heavier punishment.”Connectingthe crime analysis and judicial practice,providing space for reflection and theoretical referencein contrast,also trying to explore whether there is a need to apply widely to the same structure of crime.The content of the article is arranged bythe logical orderfrom theory to the law,then to judicial practice,and finally to seek abutment between legal norms and judicial practice.In the introduction,the paper introduces some structure of crime and the current situation of the research on punishing according to the heavier crime,combined with the general judicial practice to showits research space and research value.This paper is divided into four partsexcept for the introduction and conclusion,a total of about thirty-eight thousands words:The first part,the basic connotation of “punishing according to the heavier crime”.The concept is: the perpetrator of a crime and the fact that a number of different criminal code violations of different charges,in accordance with the heavier penalties for criminal law to be convicted and sentencing.There are three characteristics,one is to evaluate the number of crimes as a precondition;second,it is a crime sentencing a broken form,belongs to the category of the theory of penalty;three is the theory of criminal law and regulations on special provisions of criminal law and theory as the main basis.The second part,text sorting and normative judging of the principle of “ punishing according to the heavier crime”.This part will card the principle of “ punishing according to the felony” in the current legislation and judicial interpretation systematicallyand comprehensively.And summarize these as “joinder of offenses”,“imaginative joinder of offenses”,“implicated offense" and “absorption offense”.The third part: the judicial application of “punishing according to the heavier crime ”.Comprehensive theory and judicial practice,the judgment standard of "heavier punishment" should be statutory punishment.From the perspective of judicial practice,law offenses,imaginative joinder of offenses and implicated are all extend the practice of “punishing according to the heavier crime”.Among them,there is also exists the principle of priority application of special law in the joinder of offenses,and there is also exists the principle of “severely punished according to the heavier crime” in imaginative joinder of offenses and implicated offense.No matter which principle,whether there is a special law provisions,in the criminal judgment,there is no reason forthe application of the principle or invoking the corresponding legal norms and judicial interpretations as the legal basis for the judgment,but indicating directlyweather kind of crime form it belongs to and how to deal with.The fourth part: the theoretical construction of “punishing according to the heavier crime”.It is mainly discussed that the application of this principle should abide by the principle of legally prescribed punishment for a specified crime and the principle of balance between crime and punishment.It can be used to the cross concurrent type crime,but it must be limited on the lawprovision in other kinds of crime.On other occasions,unless existing full reasoning in the judgmentaccording to the criminal facts.Otherwise,all should be combined punishment for several offences according toarticle sixty-ninth of criminal law.