The Determination And Treatment Of The Special Relationship In The Concurrence Of Legal Articles

The theory of concurrence of articles in criminal law is one of the confused theories in the theory of criminal law,and the most complicated problem in the concurrence of articles is the determination of special relationship.Special relation is a typical phenomenon of concurrence of legal provisions.There is no concurrence of articles of law with the content of opposite relation.When there is a neutral relationship in the law,there is certainly no concurrence of law.Supplementary relationship is just another expression of special relationship.The essence of special relationship is that there is an inclusive relationship between common law and special law.There is a contradiction between the concurrence of legal articles and the concurrence of imagination.There is no case that an act belongs to both the concurrence of imagination and the concurrence of legal articles.For special relationship,the principle of special law article taking precedence over common law article should be adopted in principle,but "priority of law" can be adopted under certain conditions.If a certain act fails to meet the conviction standard of the special article determined by judicial interpretation,but meets the conviction standard of the common law article,the common law article shall be applied for conviction and sentencing.There are more than 50000 words in this paper,which are divided into three chapters:In the first chapter,the main content of this chapter is to discuss the basic problems of the special relationship in the concurrence of articles of law,and try to find the methods and applicable principles to determine the special relationship in the concurrence of articles of law from the basic problems in the special relationship.This chapter is divided into three parts.First of all,it defines the premise of the full text discussion,that is,it is still necessary to distinguish the concurrence of legal articles from the concurrence of imagination.If not,how can the theory of "the determination and treatment of the special relationship in the concurrence of legal articles" come into being.Secondly,it briefly explains the concept and characteristics of the special relationship in the concurrence of articles.Finally,the complexity of the special relationship in the concurrence of articles of law is analyzed from two aspects.The second chapter,the main content of this chapter is a deep analysis of the special relationship in the concurrence of articles.This chapter is divided into two parts.In the first part,the author analyzes the standards of identifying the special relationship in the concurrence of articles.There are two standards recognized in this paper,namely,the formal generic relationship and the substantive legal interest identity.In the part of "formal species relationship",this paper reveals that the essence of the special relationship is the inclusion relationship between the common law and the special law,and through the analysis of the law,it concludes that there are four types of inclusion relationship,which are species relationship,the whole part relationship,the relationship between different crimes of the same nature and the relationship between the same nature and the same crime,and makes a detailed analysis of these four kinds of relationships Finally,it is concluded that only species relations can represent the essence of special relations in the concurrence of legal articles.But further analysis found that only from the logic can not accurately identify the special relationship,because the logical relationship is only the form and representation,in order to accurately identify the special relationship,we need to analyze from the substantive point of view,so as to determine the concurrence of legal articles.Therefore,it leads to the substantive standard of identifying the special relationship,that is,the identity of legal interests.In the second part,through the detailed analysis of the cross relationship,the alternative relationship,the supplementary relationship and the absorption relationship,it is revealed that there is no cross relationship,the alternative relationship,the supplementary relationship and the type of the absorption relationship in the criminal law of our country,which also provides help for the identification of the special relationship from the side.The second chapter,the main content of this chapter is to put forward their own views on the application principle of special relationship in the concurrence of articles.It is divided into two parts.The first part introduces three application principles of the concurrence of articles of law,namely,the theory of special law absolute priority,the theory of heavy law absolute priority and the theory of heavy law supplementary application.The second part focuses on the reasons why this paper supports the theory of "double law supplementary applicability".