The Understanding And Application Of The "conviction And Punishment In Accordance With The Crime Of Intentional Homicide"

There is a special legislative style in the criminal law provisions of the crime of selling human organs,the crime of illegal detention,the crime of extorting confessions by torture,the crime of obtaining evidence by violence,the crime of abusing the supervised person,the crime of affray,and the crime of gathering people to "beating,smashing and robbing",that is,provision " be convicted and punished as intentional homicide".The number of such articles is less in the criminal code,but the acts stipulated in these articles are of serious social harm and extremely severe punishment.Once the defendant is applied,he may be sentenced to death,life imprisonment or fixed-term imprisonment of more than 10 years.However,there are loopholes in the criminal legislation of "conviction(heavier)punishment for intentional homicide",and the judicial interpretation organ has not explained these loopholes.In judicial practice,judicial personnel have different understandings on such article,and they have followed different standards in application,resulting in confusion of "different judgments for the same case".It deviates from the principle of equality in the application of criminal law and hinders the realization of the function of protecting human rights.In view of this phenomenon,scholars try to determine the nature of the clause "conviction(heavier)punishment according to intentional homicide" through the method of criminal dogmatic.At present,there are many theories,such as "the theory of legal fiction","the theory of reminding regulation ","the theory of transforming crime","the theory of legal presumption" and "the theory of the aggravated consequential offence".On the surface,there are different interpretations of it,but in fact,they are only the conflict between the theory of "legal fiction" and the theory of "reminding regulation".According to the theory of legal fiction,the article of "conviction(heavier)punishment according to intentional homicide" is a fiction provision created to show the purpose of protecting human rights in criminal law and the legislative intention of severely cracking down on crimes.When it is applied,it can be formulated as "intentional homicide".According to the theory of "notice provisions",the practice of intentional homicide in the criminal law lacks the strict requirements of stereotype and responsibility,which is just to remind judicial staff to pay attention to and instruct them to correctly apply the notice provisions of the law,and strictly follow the basic criminal constitution of intentional homicideBased on the nature of the act of "conviction(heavier)punishment according to the intentional homicide" and the difference of the subjective mentality of the actor,this article advocates that the "heavier punishment according to the intentional homicide" clauses of the crime of extorting confessions by torture,the crime of obtaining evidence by violence and the crime of abusing the supervised person are the imitative provisions.Because the execution of these three kinds of crimes should not be homicide,and the subjective intention of the perpetrator should not be homicide intention,which does not have the premise of applying the provisions of attention.In addition,in order to crack down on such crimes and realize the justice of justice,this kind of clauses are regarded as the imitative provisions.When it is applied,it is only necessary to recognize the independent criminal constitution based on the fictitious provisions.The execution of the articles of "conviction and punishment according to intentional homicide" in the crime of selling human organs by organizations,the crime of illegal detention,the crime of affray and the crime of "beating,smashing and robbing" may include homicide,and the perpetrator may also have homicide intention,so it is possible to interpret it as the provisions of attention.Based on the strict adherence to the principle of responsibility,it is advocated that they should be regarded as attentive provisions.Only when the perpetrator intentionally commits homicide based on homicide can the crime of intentional homicide be converted into a crime of conviction and punishment.It's important to note that compared with the intentional homicide which only infringes on the legal interests of life,under the circumstances of "conviction(heavier)punishment according to the intentional homicide",the act is more illegal and the perpetrator is also more responsible.Therefore,in the specific application,these acts should be punished more severely than intentional homicide to achieve the balance of crime and punishment.In addition,due to the application of the "conviction(heavier)punishment for intentional homicide" clause,in the case of joint crime,it in the drafting provisions should be transformed into a whole for all criminals.If we can find out the subjective state of mind of the specific perpetrator and the specific perpetrator,the provisions of the precautionary provisions should be applied to the transformation of the primary element and the specific perpetrator.If we can't find out the causal relationship,they can only be applied to the transformation of the primary element.