| Alternative accusations play an important role in China’s crime system.Under the background of the expansion of the selection elements,the number of alternative accusations is also increasing.Therefore,the judicial application of alternative accusations has gradually entered the academic field of vision.However,the research on the number of alternative accusations is still insufficient.Based on this,this article takes the issue of alternative accusations as a research perspective,starts to reflect on the approach to the issue of alternative accusations in criminal justice practice,and deeply analyzes the rationality of academic judgment standards for alternative accusations.With a view to providing useful thinking for the solution of the number of alternative accusations.In addition to the introduction and epilogue,the thesis consists of three parts and the full text is about 39,000 words.The first part: This part is to sort out and discuss the judicial status of alternative accusations and the reasons for the predicament.This article retrieves 263 cases involving the number of alternative accusations in the non-litigation case database.After combing and analysis,it details the ruling ideas of 19 adjudication documents,and summarizes the confusion of the judgment of selective crimes in current judicial practice.The current situation,and extracted the current situation of alternative accusations in terms of judging the number of crimes,judging the standard of the crime,the incompatibility of the crime and the prominent,differentiated sentencing plot evaluation of the three major dilemmas.At the same time,after analyzing the judgment of judicial practice,this article believes that judicial practice misreads the generation mechanism and value of alternative accusations,regards alternative accusations as a "natural" crime,and counts selective crimes as due.The case of concurrent punishment of crimes is punished mechanically,thus falling into the judicial dilemma of alternative accusations count.The second part: This part mainly reviews the crime judgment mode of the existing alternative accusations.This paper uses the literature analysis method tosystematically and comprehensively sort out the existing judgment modes of alternative accusations and conduct a detailed analysis of the current judgment mode.Specifically,it analyzes the theory of guilt and eclecticism on the judgment of alternative accusations.Among them,the academic theory of guilt about selective crimes count includes substantive theory of guilt and theory of absorption,while eclectic theory includes the theory of confinement of crimes,the same case,the theory of adaptability of crimes,the theory of close ties,and continuous crime theory.This article believes that the theory of one crime is mainly based on the logic analysis of alternative accusations with only one crime constitution and one crime.On the one hand,it violates the essential characteristics of alternative accusations—— "can be used decomposed",and on the other hand it falls into the thinking of crime punishment,facing the dilemma of incompatibility between crime and punishment.Although the eclectic theory avoids the thinking limitation of one sin theory,but in terms of the cost of judicial reform of the judgment model and the scientific nature and rationality of the judgment standard,there are major disadvantages.The third part: This part mainly explores the construction and specific application of the alternative accusations judgment model.Firstly,as far as the evaluation criteria of the number of alternative accusations are concerned,this article analyzes and demonstrates many deficiencies in the theory of the elements of crime,the theory of guilty standards,the theory of behavior,the theory of legal benefits,and the theory of the weight of offenders.At the same time,this article proposes the standard of identity of the violation of legal interests.that is,when the number of acts that violate alternative accusations is committed by using the same opportunity,and against the same legal benefit,it should be evaluated as a crime;if the number of acts is not implemented using the same opportunity,Even if it is against the same legal interest,it should be evaluated as several crimes;if the number of acts is neither performed by the same opportunity,nor against the same legal interest,it should be evaluated as multiple crimes.Secondly,when the count of offenses of alternative accusations is evaluated as one crime,it should be punished as one crime;if the count of offenses of alternative accusations is evaluated as multiple crimes,it is necessary tospecifically consider whether the conditions for multiple crimes are punished.Thirdly,this article specifically verifies and discusses the number of alternative accusations based on the classification of alternative accusations.That is,they are analyzed in object alternative accusations,behavioral alternative accusations,and behavioral and object alternative accusations.The issue of evaluation of the number of crimes and the issue of concurrent punishment of several crimes. |
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