Empirical Study On The Judicial Application Of Imaginative Joinder Of Offenses

Identification of the imaginative joinder of offenses has been studied from the perspective of criminal entity law in China,mainly focusing on the description of the structure,essence and punishment principles of imaginative joinder of offenses.However,few scholars have studied from the perspective of judicial application.This paper attempts to start from the cases of the imaginative joinder of offenses appearing in the judicial practice and analyze problems of the imaginative joinder of offenses in the judicial application process.Besides,the paper analyzes the standard of identification of the imaginative joinder of offenses and proposes a unified standard for identifying the imaginative joinder of offenses.Finally,these standards are used to solve the judicial dilemmas currently faced by imaginative joinder of offenses.The text is divided into four parts except the introduction and conclusion,totaling more than 35,000 words.The first part: Research review of this paper.Firstly,the paper introduces the purpose.Secondly,the paper introduces the research process.It mainly includes the research objects,research methods and research steps of this paper.The second part: The present situation in judicial application and existing problems of the imaginative joinder of offenses.This paper includes the changes in the number of cases,the types of crimes,definitions and punishment principles of the imaginative joinder of offenses in the present situation.Through the analysis of the current situation,the author summarizes the four problems of the imaginative joinder of offense: Firstly,offence disputes of the imaginative joinder of offenses in the judicial application;Secondly,behavioral disputes of the imaginative joinder of offenses in the judicial application;Thirdly,the dispute on the punishment principles of imaginative joinder of offenses in judicial application;Fourthly,the dispute on the limit of the imaginative joinder of offenses and statutes' joinder of offenses.The third part: The entity identification criteria of the imaginative joinder of offenses.It includes the body structure,the difference between imaginative joinder of offenses and statutes' joinder of offenses and punishment principles of the imaginative joinder of offenses.In the body structure part,this paper combs the relevant doctrines of behavioral concepts,specifically the behavioral concepts of civil law countries,the behavioral concepts of common law system countries and the behavioral concepts of criminal law in China.This paper considers that the functions of behavioral concepts include basic function,connected function and basic boundary function,and proposes that the behavioral concept of social behavior as the basic behavior,through the analysis of these behavioral concepts and behavioral concepts fuction.It also analyzes the various theories of the concept of "one behavior" in the imaginative joinder of offenses,and proposes the concept of "one behavior" with the basic behavior.In addition,it analyzes the identification of the "counting crimes" of the imaginative joinder of offenses.Specifically,it is divided into three steps.Firstly,it analyzes the relationship between the accusation and constitutive element.Secondly,it analyzes the standard for judging the number of crimes and puts forward the basis of the judgment of the "doctrine of standard based on constituents" as the basis for judging the number of crimes.Thirdly,it analyzes the nature of "counting crimes" and clarifies that the imaginative joinder of offenses should include the same type of the imaginative joinder of offenses.On the basis of analyzing the body structure of the imaginative joinder of offenses,it has distinguished the imaginative joinder of offenses and statutes' joinder of offenses.In the part of the punishment principle,this paper introduces and analyzes the various punishment principles of the imaginative joinder of offenses,and proposes that should adhere to the "heavier sentencing on the basis of the most serious crime".The fourth part: Solution to the problem of the imaginative joinder of offenses in judicial application.This paper mainly includes insisting on the "standards of sinful crimes" of the imaginative joinder of offenses,insisting on "the social behavior theory" as the criterion for judging the "one act" of the imaginative joinder of offenses,insisting on the judicial application of heavier sentencing on the basis of the most serious crime,and adopting term "constitutive elements" as a criterion for distinguishing between the imaginative joinder of offenses and statutes' joinder of offenses.