Study On The Aggravated Crime In Criminal Law Of China

Aggravated circumstances crime refers to the implementation of a basic crime on the basis of,due to the statutory aggravating circumstances,the criminal law aggravating a form of crime.As a special and common form of crime,aggravating circumstance crime is characterized by its dependence on the basic crime,relative independence in the identification of ’ plot ’,legality in the application of aggravating punishment and diversity in the connotation of ’plot ’.Compared with the aggravating circumstance crime,the ’ plot ’ in the aggravating circumstance crime can only be the conviction plot and the necessary factor of the crime constitution.The ’ plot ’ in the aggravating circumstance crime contains subjective and objective evaluation factors.The aggravating result of aggravated consequential offense is specific,while the aggravating circumstance of aggravated circumstance offense is generally abstract and general,which is not specific.The aggravated amount in the aggravated offense can be accumulated once or more,and there is no cumulative calculation in the aggravated offense.According to the relationship between aggravating circumstances and ordinary crime constitution,it can be divided into pure aggravating circumstances and impure aggravating circumstances.According to the plot content,it can be divided into specific aggravating circumstances and abstract aggravating circumstances.The basic offense and aggravating circumstance are indispensable parts of aggravating circumstance offense.The nature of aggravating circumstances is the focus of our discussion.The conviction plot theory and the sentencing plot theory have their own reasons for the nature of aggravating circumstances,and they are also worthy of recognition.However,we should make a rational judgment on the nature of aggravating circumstances.We cannot unilaterally believe that they are both conviction plots or sentencing plots,and should depend on the specific content of aggravating circumstances.The specific affirmation of the attempted form of aggravated offense is the embodiment of protecting civil rights,following the principle of suiting punishment to crime,and also the need of criminal justice practice.On the problem of determining the attempted form of aggravating circumstances offense,because aggravating circumstances offense has the characteristics of dependence on the basic offense,there is a close relationship between the criminal facts and the basic offense of aggravating circumstances offense,which can not be completely separated,so it is necessary to evaluate it as a whole.In the determination of accomplice form of aggravating circumstance crime,special attention should be paid to the determination of common causality of aggravating circumstance crime in order to realize the balance of crime and punishment.In terms of the number of crimes committed by aggravating circumstances,it may be either a substantive crime or a punishment or a statutory crime.The lack of provisions on aggravated offenses in the general provisions of the criminal law,the simplification of charges and the unreasonable allocation of aggravated statutory punishment are the problems that should be paid attention to in the legislative improvement of aggravated offenses in China.It should start from the following four aspects.Firstly,the general provisions on aggravating circumstances should be made in the general provisions,which can play a good guiding role in the identification and application of aggravating circumstances stipulated in the sub-rules of the criminal law,make up for the shortcomings of the sub-rules,and prevent the omission of specific aggravating circumstances in the sub-rules.Secondly,the specific provisions of the criminal law can be used to describe the crime,’ with clear enumeration as the principle,with general provisions as an exception ’ to build aggravating circumstances.Again,aggravating circumstances and basic offenses should be stipulated in different charges,in the basic offenses before the charges marked aggravating reasons,indicating aggravating factors constitute a crime;Finally,it is necessary to improve the aggravating statutory penalty,clarify the application conditions of the absolutely determined aggravating statutory penalty,optimize the relatively determined aggravating statutory penalty,and better connect the crime and punishment units with each other.