Study On The Judicial Problems Of The Common Recidivist

Recidivism is an important proposition of criminal law with the same long history as crime in criminal law at home and abroad.Scholars all over the world have spent a lot of efforts on the concept of general recidivism,the rationality of the constitution and the legislation of general recidivism.However,since modern times,the application of the general recidivism system has long replaced its legislation and become a major "emerging" perplexing problem of criminal justice in our country.Because the stipulation of article 65 of criminal law of our country is too concise,and the criminal phenomenon in practice is extremely intricate,how should the general recidivism under compound form be identified? How to apply the recidivism when the former or subsequent crimes committed by the actor are several crimes,and part of the crimes meet the requirements of recidivism? How to deal with the concurrence of recidivism and special crime number form when the current crime or the subsequent crime is a special crime number form? The ambiguity of legal norms in legislation and the discussion of the theoretical field are not systematic and in-depth enough,which leads to the confusion of the identification of general recidivism under the special compound form in judicial practice.The excessive use of discretion by judges and the occurrence of a large number of "different judgments in the same case" not only undermine the fairness and justice pursued by the law,but also violate the legislative intention of the general recidivism system of "behavior-centered theory" in China.The problem of criminal discretion of general recidivism in our country mainly focuses on the applicable subject of general recidivism,the applicable jurisdiction,the deviation in the understanding and definition of the standard term "the execution of criminal penalty before" and the insufficient understanding of the nature of general recidivism.Article 65 of the criminal law expressly provides that the application of excluding recidivism from negligent crime and juvenile crime should exclude the influence of the two subjects on the identification of the interval between recidivism in the punishment of the number of crimes or the combined punishment of several crimes including negligent crime or juvenile crime.In the case of combined punishment for multiple crimes,the order of "heavier punishment" for the crimes conforming to the system of recidivism should be strictly followed,followed by the principle of combined punishment for several crimes.When the recidivism is concurrence with the serial crime and the implicated crime,we should take the serial crime and the implicated crime as a whole to define the time of the later crime,so as to determine whether the latter crime meets the time requirement of therecidivism.When recidivism and mixed imagination consort,the perpetrator should be identified as a recidivism even if the felony is a negligent crime.