A Normative Interpretation Of The “consisting Of Other Crimes” Clause

Criminal Law Amendment9th was carried in 2015, in which multiple terms are" at the same time constitute the other crime, heavier punishment shall be used to punish". To such terms and conditions of the explanation, in judicial practice, mostly in accordance with the provisions of the literal meaning explanation, did not substantially to grasp, the provisions only pay attention to the literal meaning and not pursue provisions set purpose in the form of interpretation should be correct.According to the different legal consequences, such terms can be divided into four categories:choosing a felony, combining punishment for several crimes, giving priority to heavier punishment and indicating the applicable regulations. The interpretation of the different types of rules may not be consistent.In review of the category of choosing a felony and combining punishment for several crimes,the premise of interpretation is accurate judgement of the quantity of acts. In order to avoid the lack of evaluation and repeat evaluation. The determination of the quality of acts should be based on natural act, assisted with normative judgement, governed by the principle of balance between crime and punishment and introduce legal interest to rectify. It should be judged comprehensively combined with numbers of legal interests violation, the times of norm consciousness violation as well as the consideration of the dominant societal ideology, with the springboard of the validity of punishment. Multiple natural behaviors should be evaluated separately, unless the main part of the behaviors overlaps. Therefore, although the law stipulates the felony punishment, it may be necessary to graft,and vice versa.In penal code, only article 149 belongs to the category of giving priority to heavier punishment.The provision clearly stipulates that it should choose the heavy offense when constitute the crime of production and sale of ordinary fake and shoddy products and the crime of production and sale of special fake and shoddy products at the same time, so it relates with debate between overlap of articles of law and imaginative jointer of offenses. Overlap of articles of law and imaginative jointer of offenses must be distinguished because of the different essence. Overlap of articles of law only have one type. The type is that two articles have containment relationship. The crime of production and sale of ordinary fake and shoddy products and the crime of production and sale of special fake and shoddy products have crossing relation, so two articles belong to imaginative jointer of offenses.Article 149 should be seen as attentive provision.The category of indicating the applicable regulations appear in five articles, which can be divided into three types: crimes of personal risk, crime of fraud and crime of malfeasance. The stipulation in the crimes of personal risk is not the restate of the principle of "special law derogates general law". It should be seen as an indicative term, aiming to remind the judicial officers not to neglect the other articles about personal risk. Crime of fraud and the other related crimes, except crime of financial fraud, are imaginative jointer of offenses. Crime of fraud and crime of financial fraud are overlap of articles of law and it should observe the principle of "special law derogates general law". In addition, incoordination penalty about crime of fraud and crime of financial fraud originates from that the amount of research in crime stipulated by judicial interpretation is not united. Judicial officers should unite the amount according crime of fraud based on justice concept,because judicial interpretation is not equal to legislation. In crime of malfeasance, in order to realize crime balance, thinking mode of determination of a crime by the statutory penalty of the crime.Conduct constitute common malfeasance and special malfeasance at the same time, it should be convicted by special malfeasance in principle. If crime balance cannot be accorded with, it should be convicted by common malfeasance, because there is no reason to take special malfeasance as closed privilege clause.In short, the interpretation of criminal law should start with the principle of legality and the principle of crime balance. It should use synthetic tradeoff combined with range of language of criminal law, the objective norms of criminal law and the rationality of penalty. The motility of judicial officers should be admitted. It is likely and necessary to hand over the power of judicial interpretation to judgers. Substantive interpretation should be implemented completely.