Distinction And Applicable Principle Of Concurrence In Criminal Law

Concurrence in criminal law consist of three forms: overlap of provisions,conceptive concurrence and substantive concurrence.They all refer to the phenomenon when a fact violates several provisions of criminal law.There is formal criterion and substantive criterion for differentiating overlap of provision from conceptive concurrence.Formal criterion refers to the relationship of provisions,that is to say,the complete inclusion or partly overlap of two provisions brings about overlap of provision,otherwise conceptive concurrence occurs.Generally substantive criterion refer to three viewpoints: the opinion which the legal interest standard theory holds is the phenomenon when an act infringe on the legal interests protected by plural criminal provisions is conceptive concurrence,otherwise it is overlap of provisions;The opinion which the component theory holds is the form of concurrence can be distinguished by the times of evaluation of provisions violated,and there is only one act,one fault and one constitutional result but all these facts are evaluated twice formally when overlap of provisions happens.Yet when conceptive concurrence happens there is one act,two fault and two constitutional results,only the act is evaluated twice;The complete evaluation theory holds that existence of an provision which can evaluate all the fact means overlap of provisions.Inexistence of the complete provision means conceptive concurrence.Each of these criteria has some shortcomings.The debate on the criterion for distinguishing the form of concurrence has never stopped,neither on the applicable principle.It is one of the significant reasons for these divergences that legal elements of concurrence are mistaken for articles or accusations which can be divided into smaller units.Those units are basic norm of criminal law which are legal elements of concurrence.From the cognitive point of normative concurrence,it can be deduced that complete evaluation means overall and adequate evaluation of facts.And it can also be deduced that range of norm is collection of facts which are corresponding to component of norm.Recognition of basic norm,standard of complete evaluation and range of norm are core concept of revised complete evaluation theory.According to it,the distinction between overlap of provisions and conceptive concurrence lies in whether the fact that a norm evaluates can be fully evaluated by another one,and the difference between conceptive concurrence and substantive concurrence lies in whether the facts evaluated by two norms overlap or not.The revised complete evaluation theory can solve some complex problems of criminal concurrence properly.According to the principle of complete evaluation and the prohibition of repeated evaluation,we can conclude that the applicable principle of substantive concurrence is a sentence of multiple convictions,the applicable principle of conceptive concurrence is choosing a severer article,and the applicable principle of overlap of provisions is priority of special article.