Study On Applicable Rules Of Special Relation Of The Concurrence Of Articles

Law concurrence is not only a theoretical problem in legislation,but also a practical problem in judicature.However,the essence of the two should not be ignored in any case.It should be made clear that the concurrence of the law is to prohibit the repeated evaluation of an act,while the imaginary concurrence is to avoid the repeated punishment of an act.As an important part of the concurrency-cooperation type of legal articles,the existence of special relationship indicates the multiple protection of legal interests by legislation,which is independently established on the basis of ordinary legal articles.Therefore,it is of great significance to study its applicable rules.The content of this paper is divided into four parts.The first part mainly introduces the basic theory of law concurrence and the establishment standard of special relation.Concurrence of legal articles means that there is an inclusive or cross-over relationship between several legal articles.It is a static concurrence caused by the protection of a certain legal interest set by criminal law at different levels.Different scholars have different views on the classification of law concurrence,but there is no doubt about the establishment of special relationship,so the study of special relationship is the most important.In order to clarify the scope of special relationship,it is necessary to grasp the establishment criteria of special relationship from form and substance.Starting from logical relation and legal interest identity,we can make a clear definition of special relation.The second part mainly introduces three kinds of arguments on the applicable rules of special relationship,which are "special law takes precedence","supplementary application of heavy law" and "heavy law takes precedence".The advantage of the first rule is that it follows the original intention of legislation and conforms to the basic requirements of the principle of legal punishment.The advantage of the second rule is to realize the balance between crime and punishment;The third kind of rule is the most simple and straightforward,which reduces the concurrence of legal rules and imaginary concurrence to a single talk and applies uniformly "from the same point of view".However,this paper denies this view and thinks that it is a confusion of the concurrence theories of the two.The third part expounds the dilemma of applying the current theoretical rules.Theoretically speaking,"special law first" has the disadvantage of incompatibility with crime,responsibility and punishment in some aspects,but "heavy law supplementary application" also has a certain degree of conflict with the principle of legal punishment.From the perspective of judicial practice,"special law priority" suffered from the criticism of "legal punishment is abnormally light",in the relevant "amount of crime" on the crime standard is unfair.In the fourth part,after analyzing the advantages and disadvantages of each rule,this paper chooses the rule of "special law takes precedence" and analyzes the reasons one by one.In theory,the special law does not conflict with the principle of adapting crime,responsibility and punishment,but meets the requirements of comprehensive evaluation in form.In practice,the so-called "special laws are excessively light" and the "amount" is unfair only on the surface.Only after in-depth study of the value judgment behind can we understand the original intention of the legislation.In addition,the nature of the special provisions is explored and the rule that the special law should prevail,in addition to the provisions of Article 149,paragraph 2.