Understanding And Application Of The Clause Of "Constituting Other Crimes At The Same Time" In The Specific Provisions Of Criminal Law

Since the implementation of the "Criminal Law Amendment(9)" on November 1,2015,a large number of amendments have been made to the clause "Concurrently constituting other crimes,conviction and punishment in accordance with the heavier punishment provisions",Criminal Law Scholars have conducted a lot of discussions on the nature of clauses and the concurrence relationship,there has been no consensus.Even more important,this kind of dispute not only appears in the theoretical circle,but also the understanding and application of these terms in the practical circle are also very different.A large number of criminal justice cases show that the interpretation of these clauses by the law applying organs has merely stayed at the literal meaning of the clauses and failed to deeply explore the inherent logic,setting purpose and substantive basis of these clauses which directly led to the loopholes in the application of these clauses by the Judicial Organs.and even in some cases,there are serious errors in conviction and sentencing in the application of certain cases.In addition,since the implementation of the "Criminal Law Amendment(9)" The clause "Concurrently constituting other crimes" in the specific provisions of the whole criminal law has become more chaotic,it is not only because there is no rule to follow in distribution,what’s more important is that in principle,there are cases of simultaneous punishment for several crimes and "choose a felony to punish".In addition,although all of them are "Concurrently constituting other crimes",the different provisions will lead to different interpretation rules due to the special relationship between the constituent elements.Therefore,it is necessary and radically reform to launch and explain it in Dogmatics.In order to overcome the overly extreme disadvantages in the identification of the number of traditional behaviors,the principle of legal interest with the principle of overlapping principal act should be combined.The concept of legal interest can make the recognition standard of singular and plural behavior more proportionate punishment to crimes,clear in judgment and concise in evaluation.This means that the screening of the number of acts must adhere to the dual consideration of natural significance and normative significance: First of all,examining from the perspective of nature,starting from the general concept of society,evaluating criterion without the help of the value of legal norms,from the perspective of natural facts,it is examined whether the realization of several criminal constitutive elements depends on this natural act,that is,the formal review before the event;Secondly,it is limited from the perspective of legal norms,which is mainly to judge the importance of the behavior in the previous step in the elements of multiple crimes involved,that is,the substantive limitation after the event.On the basis of meeting the above requirements and meeting the principle of overlapping principal act,it can be identified as "the same act".Because there are different external forms and internal structures between the clauses of concurrence,imagination of concurrence,which are totally different legal consequences,it is necessary to distinguish them strictly.At present,the standard of distinction mainly includes the legal relation theory,complete evaluation theory,legal interest distinction theory and crime numbers different theory.However,the core factors adopted by these several standards in the process of distinguishing are only different reflections of the same aspect of the two,and they cannot fully reveal the essence of the two.The comprehensive evaluation theory combines the factors of form and substance and shows the differences between them in a profound and comprehensive way.There is no doubt as a criterion for distinguishing between the two.The clause "Concurrently constituting other crimes" can be divided into the "choose a felony to punish" and "simultaneous punishment for several crimes" from the perspective of punishment rules.The core of the understanding of the clause "choose a felony to punish" is the understanding of "one act" and "several legal interests".The interpretation of "Concurrently" in the meaning of criminal law means that there is consistency in the main part of the acts performed by the actor.Therefore,the application of these clauses must also insist on grasping the meaning of these clauses in substance,rather than just stay on the surface literal meaning of the clauses.Therefore,when preparing for the implementation of the crime of terrorism,the crime of dangerous driving and crimes of manufacturing or selling fake or substandard commodities conform to the "Concurrently" standard,it should be considered to constitute the imagination of concurrence,choose a felony to punish;And the reason why simultaneous punishment for several crimes for insurance fraud is that the behavior of the actor cannot be fully evaluated by the crime of insurance fraud.