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Study On The Punishment Of Implicated Offense

Posted on:2019-08-03Degree:MasterType:Thesis
Country:ChinaCandidate:S J HeFull Text:PDF
GTID:2416330545954837Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The theory of implicated offense is an important part in the theory of crime form.There are only a few countries prescribe the punishment of implicated offense in their criminal law.Although it is not stipulated in the penal code of our country,the specific provisions of criminal law can still embody the punishment of the implicated offense.Since the related rules about the punishment are different,and scholars have a great disagreement about the concept and punishment principles of implicated offense,which lead to the chaos of judicial practice.In order to punish the implicated offender properly,it is necessary to define the concept and constitution of the implicated offense.The concept should embody the implicated relationship between the acts,and also should reflect the subjective factors of the perpetrator.It means that the perpetrator commits some acts based on a final criminal purpose.As for the cognizance of implicated relationship,both subjective and objective aspects should be considered.And it is necessary to emphasize not only the master-slave relationship between several acts,but also the implicated intention of perpetrator.There are four viewpoints on the punishment of the implicated offense: Some scholars hold that the implicated offenders should be severely punished in accordance with the crime which is graver;someone insist the principle of cumulative punishment;some agree that the implicated offenders should be given a heavier punishment in accordance with the crime which is graver;the others think that the implicated offender should be punished according to a certain standard.The last viewpoint is divided into four opinions: The legal standard;the standard of severity of crimes;and the distinction standard of means type implicated offender and result type implicated offender.All viewpoints have their reasonable place.In order to ensure the penalty is appropriate,the punishment should not only consider the social harmfulness of implicated offense,but also analyze whether the punishment conforms to the principle of full evaluation and the principle of prohibiting repeated evaluation.The single punishment is difficult to take into account the two principles at the same time.Therefore,it is not proper to punish the implicated offender with the same principle.The punishment should consider different situations.The object of a crime can embody the nature of the criminal behavior and the degree of social harmfulness,so the implicated offense should be punished according to the standard that whether the object the acts infringe is same.The implicated offense that infringes different object is called implicated offense with independent relation.And the implicated offense that infringes the same object is called implicated offender with no independent relationship.The former should be punished for all the crimes,but the latter should be given a heavier punishment in accordance with the crime which is graver.In addition,when the implicated offender and the joint crime are competing,the punishment principle of the implicated offense and the principle of the joint crime should be considered at the same time.In the situation where the method act or the result act has not been accomplished,the establishment of implicated offense should be considered first.If the act that constitutes continuous offense is a part of implicated offense,it is advisable to punish the perpetrator as a continuous offender first,and then consider the punishment of the implicated offender.
Keywords/Search Tags:Implicated Offense, Cumulative punishment, Principle of severe punishment in accordance with the crime which is graver, Full evaluation, Prohibition of repeated evaluation
PDF Full Text Request
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