Study On The Function Of Homogeneous Behavior In The Establishment Of Statutory Penalty

The homogenous behavior is a phenomenon of criminal legislation in our country.It refers to certain crimes of separate legislation,and the essential attributes of the basic structure of behavior are the same.As a carrier of social harm,the degree of harmfulness of behavior directly affects the setting of its statutory penalty,and the statutory penalty setting between the crimes of homogenous behavior should have uniformity and correspondence.However,through the combing of the homogenous behaviors in the provisions of the criminal law of our country,we can find out the problems of the statutory punishment of homogenous behavior:decriminalization of certain crimes,the non-correspondence of the quality penalty,and the confusion of the legal order.In order to solve these problems with the concept of the homogenous behavior,this paper starts with the definition of homogenous behavior,sorts out the crimes of homogenous behavior in the criminal law of our country,analyzes the problems in the statutory penalty setting,and then studies the substantive and the formal functions of homogenous behavior in the statutory penalty setting.This paper is divided into four chapters,amounting more than 42,000 words.Chapter one: Definition of Homogeneous Behavior.The specific provisions of criminal law reflect the thinking of behavior typification,but the over typification of legislation and the excessive attention paid by legislators to the hotspots of crime have resulted in the phenomenon of homogeneous behavior splitting legislation.Starting from the causes of homogeneous behavior,this part analyses the essence and characteristics of homogeneous behavior,and makes a comparative analysis between homogeneous behavior and related concepts such as typified behavior,crime group and law coincidence.It needs to be explained that there is a special relationship between homogeneous behavior and competition and cooperation of laws,both of which are legislative phenomena.Competition and cooperation between laws is the realistic basis for the existence of homogeneous behavior.However,the focus of homogeneous behavior is the relationship between the nature of behavior and the establishment of statutory penalty,which is different from the concurrence of articles of law.Chapter two: confluence analysis the crimes of homogeneous behavior.To judge the homogeneity of different crimes,we must adhere to the comprehensive criteria of social connotation judgment and normative terminology supplement.The social connotation of the nature of the act is the essential attribute of the homogeneous act,while the normative terms of criminal law delimit the boundary and supplement the conceptual connotation of the homogeneous behavior.Starting with this criterion,combined with social connotation judgment and normative terminology supplement,14 homogeneous behaviors,nearly 90 specific charges,can be sorted out in the criminal law provisions.In this paper,the author selected 5 typical homogeneous behavior: Compulsory crime,Safety accident crime,Theft crime,Fraud crime,illegal business crime,confluence analysis the related homogeneous behavior crimes and outlining its statutory penalty settings.Chapter three: Examine the establishment of statutory penalty for the crime of homogeneous behavior.Starting from the basic theory of the establishment of statutory punishment,this part briefly expounds the basis,standards and principles of the establishment of statutory punishment.On this basis,the basic relationship between homogeneous behavior and statutory penalty setting is proposed,and judicial interpretation supplements the statutory penalty setting of homogeneous behavior charges.This paper explores the problems existing in the establishment of statutory penalty for crimes of homogeneous conduct,such as the decriminalization of certain crimes,the non-correspondence of the quality penalty,and the confusion of the legal order.Then analyses the causes of these problems from three aspects: legislative technology,classification of similar crimes and historical evolution.Chapter four: The Realization of the Function of Homogeneous Behavior in the Establishment of Statutory Penalty.According to the correspondence and unification between the nature of the charges of homogeneous act and statutory punishment,this paper puts forward the dual functions of substance and form of homogeneous act in the establishment of statutory punishment.Its substantive function lies in restraining the comparison of penalties and realizing the rationalization of the statutory penalty;its formal function lies in perfecting the system of the specific provisions of criminal law through the combination of charges and the adjustment of the position of individual crimes.The realization of the function of homogeneous behavior not only helps to embody the synthetical theory of punishment basis that pays equal attention to retribution and prevention in the process of setting up statutory punishment,but also helps to promote judicial justice through rational allocation of statutory punishment.The function of homogeneous behavior in the establishment of statutory punishment needs to be realized at the legislative level.Specific measures include the allocation of uniform types of punishment for homogeneous behavior charges,the determination of criteria for minor and serious crimes,the merging and location adjustment of some charges.