On The Restrictive Effects Of The Principle Of Prohibiting The Repetitive Assessment On Criminal Justice

The principle of prohibiting the repetitive assessment on criminal justice is an old legal concept.It was firstly seen in the jurists’ works in ancient Rome.In modern law,it is mainly applied in the field of criminal law.There is also certain article in China’s criminal law reflecting the spirit of this principle.In terms of the field of criminal law,the principle has important regulative effects on conviction and measurement of penalty.Therefore,the research of this priciple is of great significance.The chapter 1 summarizes the principle of prohibiting repetitive assessment.The section 1 expounds the theoretical origin and the meaning of this principle.The principle has its orign in ancient Rome.It was firstly applied in the field of procedural law.In the context of situation in modern law,the principle in the field of criminal law has been stipulated in the constitutions or criminal laws of many countries.Although the principle has not been directly stipulated in China’s criminal law,the article of the negative acknowledgement of foreign criminal judgment has reflected the spirit of this principle.The definition of the principle should be that in the whole process of criminal prosecution,the identical behaviour of criminal sense cannot be assessed twice or more times.The section 2 expounds the target of the principle.It is directed at the behavioursof criminal sense,excluding the non-behavioural facts,like time,site,etc.Besides,the criminal punishment of the former crime also belongs to the non-behavioural facts,otherwise some stipulations like recidivist will lose its theoretical basis.The section 3 discusses the values of the principle.The values are as follows:reflecting the idea of protecting the defendants’ freedom;reflecting the spirit of the principle of correspondence between crime and punishment;safeguarding the authority of judgment.The chapter 2 expounds the the regulative effects of the principle of prohibiting repetitive assessment on conviction.The three selected questions,namely the suspected repetitive assessment in the criminal-record-associated crime,the combined-punishment repetitive assessment and the repetitive assessment in the transforming offense,separately represents the suspected repetitive assessment in articles,the repetitive assessment in articles and the joining path between the repetitive assessment in conviction and the repetitive assessment in sentencing.In the section 1,the meaning of criminal-record-associated crime can be explained as such: according to the criminal law or the related judicial interpretation,the criminal or administrative punishment of the congener or similar behaviours will influence the conviction of these crimes.A typical example is the exception of the impunity article of the tax evasion crime,which is stipulated in the later provision of Article 201,Paragraph 4.The conviction of the criminal-record-associated crime doesn’t violate the principle of prohibiting repetitive assessment,because the recorded behaviour is not assessed in the constitution of the new crime.What is assessed is the result of the recorded behaviour,namely the criminal or administrative punishment.In the section 2,the combined punishment of gangland crimes and “other crimes”is stipulated in the Article 294.The conviction of “other crimes”is the establishing condition of gangland crimes.This is why the repetitive assessment exists.As to the crime of entering and developing mafia-like criminal gangs,the entering behaviour may convict the crime of illegally crossing national border or arranging for others to illegally cross national border.Combined punishment violates the principle of prohibiting repetitive assessment and the punishing principle of implicated offender.In terms of the crime of organizing,leading,participating in the terrorist organization,there usually doesn’t exist the repetitive assessment.According to the Article 3,Paragraph 3 of the counter-terrorism law,“other crimes”,such as intentional murder,explosion,kidnapping,are not the precondition for the establishment of the crime of organizing,leading,participating in the terrorist organization.The section 2 also expounds another question of the combined-punishment In repetitive assessment.In terms of the combined punishment of playing-favoritism-and-committing-irregularities-type malfeasance and bribery crime,although it is stipulated in a judicial interpretation,there does exist the possibility of repetitive assessment,because the act of accepting bribes is usually a key factor of the presumption of the motivation of playing favoritism.The section 3 expounds the repetitive assessment in the transforming-type offense.The transforming-type robbing is a typical example.There are 8circumstances where the legal penalty of the crime can be upgraded.When these circumstances appear in the behaviours of theft,fraud or forcible seizure,there can be repetitive assessment in sentencing.The chapter 3 researches on the the regulative effects of the principle of prohibiting repetitive assessment on setencing.The regulative effects have abundant contents,including not only the sentencing circumstances of specific crimes but also the statutory sentencing circumstances with general meaning,like recidivist,surrender,etc.The section 1 takes the repetitive assessment in the sentencing of traffic offenses as an example to research on the repetitive assessment between circumstances of conviction and circumstances of sentencing.The repetitive assessment of the escaping behaviour is a typical manisfestation.In the judgment of repetitive assessment in traffic offenses,it should be noticed that if part of the reasons is enough to confirm the major responsibility,the court should choose the other reasons to judge whether the doer constitutes the fundamental offense or aggravated offense of the traffic accident crime.In this way,the court can ensure the sufficient assessment of all the circumstances and prevent improper impunity or too minor measurement of penalty.The section 2 researches on the repetitive assessment between the statutory circumstances of sentencing.The item 1 expounds the repetitive assessment in the coincidence between drug recidivism and recidivism.The coincidence means that there is a possibility that the repetitive assessment exists.In this case,the relevant summaries should be correctly understood,especially the Summary of the Forum on drug crime cases in some courts throughout the country.It is published in 2008 and the meaning is not very clear.Besides,the principle helps solve the question whether the juveniles can constitute drug recidivism.The item 2 researches on the coincidence of the voluntary-confession-type article(such as the forepart of the Paragraph 2,Article 392)and the circumstances of surrender or confession.The item 3 researches on the coincidence of the rendering-meritorious-service-type article(such as the back end of the Paragraph 2,Article 392)and the circumstances of rendering meritorious service.When dealing these cases,the principle of prohibiting repetitive assessment should be obeyed,in order to avoid improper mitigation of punishment.The section 3 takes the “homogeneous remaining crime” as an example to research on the repetitive assessment of setencing in different judgments.The meaning of “homogeneous remaining crime” is that the doer has been sentenced because of a crime,but the judicial office finds his or her homogeneous behaviour before the sentence,and the homogeneous behaviour and the sentenced behaviour constitute an indivisible whole.In juridical practice,when passing the sentence on the defandant who has conducted the “homogeneous remaining crime”,the judge often ignores that some behaviours in the “homogeneous remaining crime” has been assessed in the former sentence,which leads to the unfairness in the measurement of penalty.The regulative effects of the principle are reflected in many aspects.In judicial practice,there exist some misunderstandings that lead to the mistakes in case dealing.In fact,as long as we realize that the principle is pointed at the behaviours of criminal sense,it is not difficult to correctly apply the principle and maximize its use in regulating criminal justice.