Research On Several Issues Concerning The Conviction Of The Crime Of Substituting Examination

The phenomenon of substitution in test is like an ant's nest in a dyke of thousands of miles.It is not only a serious damage to China's fair and orderly test order,as well as the country's credibility and social integrity,but also seriously undermines the legitimate interests of candidates who are in good faith.In recent years,there have been cases of substitution in the college entrance examination.For example,Qi county in Henan province and Nanchang in Jiangxi province have had sensational cases of substitution in the university entrance exam.These cases have a commonality that cannot be ignored,that is,the "Gunners" participate in the test on a large scale,taking the test in place of others.Before “The Amendment to the Criminal Law of the People's Republic of China(IX)”,punishment for this phenomenon mainly relied on administrative punishment,but the frequent phenomenon of replacing in exam was not effectively curbed,instead,it exposed the limitations of administrative punishment,that is,the punishment intensity was relatively light and the deterrent effect was limited.Therefore,in order to effectively curb the increasingly fierce phenomenon of "gunners taking the exam for others" and re-establishing fairness in the field of examinations,“The Criminal Law Amendment(IX)” added the new crime of replacing in exam,and brought the act of taking the exam into the scope of criminal law regulation for the first time.At this point,substituting for examination in the field of criminal law have the specific applicable charges,thus effectively avoiding the serious behavior that appeared before “The Criminal Law Amendment(IX)” can only be regulated by administrative regulations and rules,but in the criminal law could not be in accordance with,in turn,result in their stead become worse due to not get punished.Simultaneously this method effectively makes up for the loopholes in the criminal law to regulate their stead behavior,which can achieve the situation of law-based examination.The Criminal Law Amendment(IX)expresses the crime of substituting the test as: if you replace another person or let others take the place of you to take the national test prescribed by law,you will be detained or controlled,and you will be punished with a fine.This article stipulates two acts of behavior in lieu of the test,that is,the act of substituting others for the test and the act of letting others replace oneself for the test.Then,the scope of application of the test for replacing the test is defined as “the national test prescribed by law”.Finally,it describes the statutory penalty configuration for the crime.It seems to be clear and specific,but in reality there is a lot of ambiguity.For example,in terms of behavior,if someone not let others replace their own exams,but to let others replace their own children,relatives,friends to take the exam,can this be concluded as “let other people take the exam instead of some oneself”? Moreover,in practice,there are often acts of examinees who are qualified to each other to write each other's identity information on the answer sheet.How should the act be qualitative and can it be extended to explain the crime? How to understand the “national examinations prescribed by law”? None of these provisions are clear,nor are they supplemented by legislation or judicial interpretation,which challenges how to correctly apply this crime in judicial practice and provides loopholes for judges to abuse their discretion.Therefore,it is necessary to clarify the charge in place of the crime of examination in order to ensure that the judiciary can accurately apply the crime.This paper bases on the above problems,from the following three parts to discuss.The first part focuses on the three focal points in the constitution of the crime of replacing in exam,discusses the subjective aspect of the crime,the object of infringement and the act of substituting the examination in the objective aspect,in order to have a macroscopic understanding of the crime.The second part is the discussion about the crime and non-crime of substituting for examination.It mainly explains how to understand the word "law" in the "legal provisions",how to define the "national examination".the social harmfulness of the act of substituting for the examination.In lieu of the criminalization and exoneration standards of test crimes,it provides a basis for the correct identification of this crime in judicial practice.The third part analyzes the crime of substituting examinations and related crimes.It mainly analyzes the crime of substituting examination crimes and organizing examination cheating crimes,identity document crimes and bribery crimes.By analyzing the relationship between these crimes,it is beneficial to the perpetrator is determined to sue and sentence.