Analysis Of The "Serious Circumstances" Of Circumstantial Offences

Looking through the relevant normative legal documents such as criminal legislation and judicial interpretation,the term "serious circumstances" can be seen everywhere.According to the author's statistics,there are 68 cases of "serious circumstances" in the Criminal Law of 1979 in China,while in the Criminal Law of 1997,"serious circumstances" increased sharply to nearly 300,and there are many similar "other serious circumstances" or "other especially serious circumstances" and so on.Normative terms describing the degree of circumstances;by retrieving various criminal judgments,the term "serious circumstances" has also been widely used,such as "serious circumstances" of an act has constituted a certain crime";it can be seen that"serious circumstances"has been frequently used in the theoretical system of criminal law and criminal judicial practice in China.The description of the harm degree of the specific elements of crime by "serious circumstances" once again highlights the legislative model of "qualitative + quantitative" in China.Some scholars call "serious circumstances" a criminal law category with Chinese characteristics.This legislative model is different from the simple qualitative analysis in the world today,but defining the "quantity" or "degree" in the definition of crime and the setting of specific norms of crime and punishment does not mean that relevant theoretical research does not consider or pay attention to the dialectical relationship of "quality by quantity" in qualitative crime.Under the current legislative system of circumstantial crime,the author tries to analyze the normative structure of circumstantial crime and the nature of "serious circumstances",and on this basis,combines with the judicial identification of circumstantial crime,to explore the specific application and identification of "serious circumstances".In addition to the introduction and conclusion,this article is divided into five parts,more than 30,000 words:The first part summarizes the normative structure and characteristics of plot crime,laying a foundation for discussion.Firstly,according to the specific provisions of the Criminal Law,the definition of circumstantial offence is clearly defined as the type of crime that takes "serious circumstances"(including bad circumstances)as the elements of constitutive elements of crime or elevating or lowering the level of legal penalty.Secondly,it analyses the proportion and distribution characteristics of plot crime in the system of charges,and concludes two characteristics of basic plot crime: minor crime and negligent crime;serious and bad circumstances can be interoperable.Thirdly,the aggravated circumstance crime also includes the aggravated circumstance crime,as long as it does not involve the subject status and other attribution reasons,and belongs to the intentional content,the aggravated circumstance is the aggravated constituent elements.The second part,combing the existing theoretical viewpoints,inventory of research progress and disputes.Firstly,it confirms the consensus of the academic circles around the legal meaning of "serious circumstances",that is,the "serious circumstances" of the criminal law provisions are identical to the serious circumstances and belong to the conviction circumstances,that is,the plot offender has the nature of "quantification and quality".Secondly,it analyses the structural relationship between "serious circumstances" and the constitution of crime in the norms.Through theoretical disputes,it is concluded that "serious circumstances" are the elements of the constitution of crime,and can be reduced to the subjective and objective elements of representing the degree of illegality.Thirdly,distinguish the plot of plot crime from the circumstance of proviso.The former one is a qualitative judgment of conviction.It should be considered in the constitution of the crime,and the latter one can be used in the evaluation of conviction,which can be put into the consideration of the illegal or responsible class.The third part,in-depth investigation and trial practice,to understand the practical arguments and doubts.On the one hand,specific analysis of the relevant judicial interpretation and legislative interpretation of plot crime,evaluation of the circumstances of the identification of plot crime,summarize the relevant judicial rules.On the other hand,by sampling the cases of abuse of supervised persons,we can conclude the misunderstanding of "serious circumstances" : judicial interpretation goes beyond the scope of normative words,and the case determination of circumstances offenders breaks the common rules from time to time and the reasons are vague.The fourth part focuses on the normative meaning of "plot" and discusses substantive standards and procedural control.Firstly,in view of the "serious circumstances" stipulated in the specific provisions of the Criminal Law,this paper makes a detailed analysis of the meaning of the circumstances and its internal structure,and sums up the specific forms of the circumstances around the objective elements such as means,objects and results.Secondly,from the psychological state of motivation,victim's fault,purpose and other acts,the concrete facts reflecting the specific content of the actor's subjective fault are summarized,and it is clear that in judicial determination,the specific circumstances involved in the case should first be distinguished whether they meet the requirements of the type of circumstances here;thirdly,to identify the existence and specific nature of the circumstances,the burden of proof should be borne by the prosecution,and the defense only needs the initial stage.If the plot is not established step by step,the judge must adhere to the standard of judicial trial,not the standard of investigation and prosecution.The fifth part confirms that "serious circumstances" and "bad circumstances" are the basic judgments of the constituent elements.First of all,the conviction thinking should be to judge that the behavior conforms to the basic elements,and then to judge the degree of illegality.At this time,there is no need to strictly distinguish between "serious" and "bad",both of which reflect the degree of illegality of the act,are the evaluation of "quantity" of the act,that is,according to the degree of illegality to judge the nature of the act of "quality by quantity" standard.Secondly,value judgment is included in the criterion of "quality by quantity",so judicial discretion and judicial practice experience should be faced squarely.Thirdly,in the normative design,the judgement of "quality by quantity" adopts the criterion of high probability.For disputed cases or cases that have aroused social concern,criminal judges should elaborate on the basis of "serious circumstances" in the judgment.