An Empirical Study On The Combined Punishment For Several Offenses Of Omitted Crime

This article is divided into four parts.The first part is the theoretical overview of the combined punishment for several offenses of omitted crime.It includes three aspects,the basic meaning and constitutive requirements of the crime of omission,and the basic meaning and constitutive requirements of the combined punishment for several offenses of omitted crime,and the legitimacy basis of the combined punishment for omission.The author holds that the time condition “After declaration of judgment” in the provisions of the Criminal Law concerning Omitted Crime should be understood as the judgment is pronounced and beginning to take effect.According to the provisions of the execution of supplementary punishment,the Punishment in "The completion of the execution of the Punishment " doesn't mean all the punishment,it don't includes supplementary punishment,but only refers to the principal punishment.The essence of combined punishment is the combination of criminal responsibility,not the combination of several crimes,and the object of combined punishment is the punishment of several crimes.The principle of combined punishment for several crimes includes the principle of combined punishment,and the principle of aggravating the limitation,and the principle of absorption,last the principle of synthesis.At present,the principle of synthesis is adopted in our country.The legitimacy of the combined punishment for several offenses of omitted crime lies in the utilitarian value pursued by the punishment for omission,and the existence of time dislocation eventually leads to the concurrence of criminal responsibility afterwards.The second part is about the practical dilemma of the combined punishment for several offenses of omitted crime.It includes four aspects,the treatment of omitted crime after the execution of the penalty,and whether the Kindred Crimes which a criminal has truthfully confessed before the judgment but has not been dealt with by the judgment are identified as omitted crime,and the problems in the combined punishment of several crimes of freedoms,and the the combined punishment between the Ultimate Punishment which has reduced the sentence and the punishment of the Omission Crime.At present,there is no provision for the treatment of omitted crime after the execution of the penalty.The current academic and judicial practice is still controversial about whether the Kindred Crimes which a criminal has truthfully confessed before the judgment but has not been dealt with by the judgment are identified as omitted crime.The main problems with the combined punishment of several crimes of freedoms are the combined contradictions between the Fixed-term Imprisonment and the Control Punishment or the Detention Penalty and the principle of aggravating the limitation of the Fixed-term Imprisonment.Finally,to the problem of the combined punishment between the Ultimate Punishment which has reduced the sentence and the punishment of the Omission Crime,it includes the effect of the judgement which has reduced the sentence,and how to understand "the punishment of previous judgement and subsequent judgement" in the provisions of the Criminal Law,and how to deducted the sentence that has been executed from the final sentence.The third part is the solution to the problem of the combined punishment for several offenses of omitted crime.To the Kindred Crimes which a criminal has truthfully confessed before the judgment but has not been dealt with by the judgment,the author takes that they shall be merged together in a trial according to the criminal retrial procedures and be reset to the original state before the judgment is pronounced.At the same time,the author suggests that the omitted crime found after the execution of the penalty should be executed separately,not in favor of the combined punishment of several crimes.In view of the current problems in the combined punishment of several crimes of dissimilar freedoms,especially the combined contradictions between the Fixed-term Imprisonment and the Control Punishment or the Detention Penalty,the author tends to separate the execution of the solution.In the application of the principle of aggravating the limitation of the Fixed-term Imprisonment,it's resulting in imbalance in sentencing by the total term of imprisonment is limited by 35 years and the application is limited by stages.In order to be beneficial to judicial practice,the author suggests that it should be stipulated at a macro level that the maximum term of imprisonment should not exceed 25 years.Lastly,besides the way to deal with the revised Ultimate Punishment and the punishment of the omission crime by the current judicial interpretation,the author suggests that the commutation of reduced the sentence is effective and the sentence that has been executed shall be deducted from the final sentence according to the actual situations.