Research On The Problems Related To The Replacement Of Examination Crime

On November 1,2015,China's“Criminal Law Amendment(9)”came into effect.The amendment stipulated that the relevant acts of cheating in examinations should be criminalized.In the fourth paragraph of Article 248,"replace other people's exams or allow others to participate in the examination prescribed in the first paragraph,they shall be detained or punished,or be subject to a fine or a single fine." Regulated as an replacement of examination crime.After the acceptance of the test,many cheats who attempted to pass the test have been subjected to more severe criminal penalties than the administrative penalty.This has effectively curbed the increasing practice of interrogation and maintained the national examination to some extent.Authority and fairness.At the same time,the alternative to the examination is a crime of the new regulation of China's "Criminal Law".There are still many problems to be discussed in the theoretical and judicial practice.These issues are also worthy of attention and discussion.For example,there is no clear definite conclusion about the related stopping pattern of the substitute test;for example,besides the substitute tester,how other persons participating in the substitute test should be characterized;for example,in judicial practice,it is a crime against the test.There is a lot of chaos and so on in the disposal of people for crimes.This article will be based on the above questions as a clue,combined with the relevant case of alternative test crimes,divided into three parts to discuss and give recommendations.The first part is the first chapter.Through the Judicial Document Network and the Beida Magic Case Library,78 representative cases of replacement of examination crime in 2016 and 2017 were collected,and detailed statistics and analysis were conducted on these cases.The contents of the statistics include the type of examination,the identity of the involved persons,the time when the examination was found,the judicial determination,and the punishment of the involved persons.After sorting out and analyzing the statistics,it was found that there is a considerable degree of confusion in judicial practice.For example,the differences between the circumstances of the replacement of examination crimes and the judgment of the discrepancies of crime and punishment are insufficient.The second part is the second chapter to the fourth chapter.In this section,it is adetailed study of the specific issues that exist in place of the examination of crimes,including the issue of replacing the form of test quitting,the issue of the common criminal form of replacing the test,and the disposal of crimes instead of the test.In the study of morphological problems,through the judicial practice,there is no consistent standard for determining the status of the replacement of examination crime guilt and the attempted form.This leads to the definition of the alternative and unsuccessful guilty of the replacement of examination crime,and then discusses the alternative forms of the alternative s The criminal's crime stop form;In the study of the joint crime form problem,it is clear that in place of the examiner and the substitute tester,it is the opposite of the perpetrator,and it is an essential accomplice.Secondly,for those who participated in the replacement of examination crimes,such as "crew lineups," "certificates," and "discipline supervisors," they were also co-criminals instead of test crimes,and they were analyzed according to different circumstances.Abettors or help criminals;in the study of crimes and punishments,through the enumeration of the results of specific cases,it was found that most of the alternatives to the examination of criminal law is a lighter treatment,that is,probation is the main,and few real penalties are imposed.The deterrent effect of the test action was insufficient.In addition,there are still a lot of penalties in the judicial practice.For example,there are cases where the case is similar in the two cases with different cases,and if the case from the lighter case is judged heavier than the case without the light case,it is reflected The trial activities lacked certain caution and did not reach a clear common understanding.The third part is Chapter 5.In this section,it is mainly to explore the countermeasures to replace the problem of test.First of all,to put the field of vision in foreign countries on the governance methods of alternative examinations,it is clear that the punishment of foreign punishment methods is severe and the sentence is heavy.It is shocking and sufficient for the substitution of the examination and has a strong sense of education.For our country,it may be possible to try to increase the legal penalty for replacing the test,such as the imprisonment up to one year,and a fine,which will be severely punished by those who have long been engaged in the substitution of others.Second,given that there are no guiding cases and judicialinterpretations related to the substitution of examinations in China,the Supreme People's Court can issue some typical and authoritative guidance cases to guide judicial practice and form a good and effective demonstration.Through these guiding cases,the courts across the country can have a clear understanding and judgment of the problems related to the substitution of examinations.In addition,the Supreme People's Court can also publish relevant judicial interpretations to deal with these problems existing at the judicial level.These issues can be well regulated by the Supreme People's Court,including the specific determination of the subject of persons convicted of crimes instead of examinations,the determination of circumstances,and the severity of sentencing.So that the judges have a rational orientation and regulate the handling of replacement of examination crime.