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Different kinds of criminal status to a common crime, the conviction Research_1038

By Sylvia Sanchez,2014-10-30 18:09
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Different kinds of criminal status to a common crime, the conviction Research_1038

    Different kinds of criminal status to a common crime, the conviction Research

     Summary criminal identity is prescribed by law, have an impact on the conviction and sentencing of a certain individual elements or units of a certain subsidiary

    conditions. It can be divided into natural units of identity and criminal status of the Criminal Code. Criminal Identity refers to natural law, have an impact on the conviction and sentencing of certain personal factors; unit of the Criminal Code refers

    to the status of the law, have an impact on the conviction and sentencing of certain subsidiary conditions of the unit. Natural person guilty under the law refers to acts of natural persons to commit a crime when the criminal law has the status of natural

    elements or statutory penalties for conviction of crime plot. The different kinds of criminal law in resolving the status of common criminals who committed the conviction pure natural identity issues, it should be a comprehensive evaluation of various theories, combined with "crime constitutes a line to say" Lapping of Legal Provisions in accordance with the principles.

     Key words criminal identity / natural person guilty / Lapping of Legal Provisions

     In the crime, the crime of criminal law and some of the main identity, and some not,

    this is their status to criminal law and the non-criminal status is a common crime. Some

    of the main body of common crime, has a criminal identity, but different types, which either embezzlement or accepting bribes and other crimes of the main identity, some of

    the main duties Embezzlement identity, This is between the various kinds of criminal status is a common crime. This paper specializes in criminal law there are different kinds of pure natural as common criminals who commit identity problem of conviction.

     1, criminal law, identity and the concept of pure natural person guilty of

     1. Criminal Law Criminal Law identity and the identity of the concept of natural persons

     Some commentators have suggested, "as a legal adjustment of status if the contents will become legal status. The legal status of citizens in social life is a relatively stable status or qualifications, is a manifestation of a certain legal relationship. Because of the different legal department, legal status may be is divided into civil status, criminal

    status. "? This leads to the identity of the concept of criminal law, it should be noted that the Criminal Code mentioned here refers only to natural persons as criminal identity, identity of the Criminal Code does not cover units. Criminal identity is the identity of the criminal law in short, some call it a specific identity, meaning that criminal law is usually stated the sense of identity. Criminal identity should include the natural unit of Criminal identity and criminal status. In mainland China, the Criminal Code for the unit as yet monograph, but some commentators say the "special unit of the main." ? The author believes that this special unit of the main body in accordance with the provisions of the Penal Code should have the conviction and sentencing of the impact of the special conditions that the unit of the subsidiary condition that the unit of the Criminal Code identification, such as the provisions of Article 126 of the Penal

    Code violation manufacturing and selling firearms of the Crime of the main identity is "has been designated by law to determine the gun manufacturing and sales business." The units attached to the main unit of the subsidiary conditions are the main criminal

    identity. There are units of the Criminal Code as an object, such as the unit of Article 391 of the Penal Code the crime of bribery bribery provisions of the object of state organs, state-owned companies, enterprises, institutions, people's organizations.

     Theorists of the natural interpretation of the identity of the Criminal Code, there are different proposals:

     (1), said a specific relationship

     This said, the social relations will be based on a natural person natural interpretation of the Criminal Code as a specific relationship, that a particular person with a specific identity of the relationship between. The so-called "special relationship"

    refers to the special people generated based on the fact that a special relationship.

    Defects in specific relationship that there are two: First, the concept of extension is too narrow, does not recognize the object also has some crime, criminal status. Second, does not reflect the status of the legal provisions of the Criminal Code characteristics

    and impact of conviction and sentencing of the essential features.

     (2) specific qualified to say that

     To say that the natural person is the criminal law, criminal law as certain criminal acts that the person must have specific qualifications. The said that the Criminal Code

    does not recognize the identity of the victim owned the same time, it does not reveal a criminal conviction and sentencing of impact of the nature of identity attributes.

     (3) The individual elements of that

     This says that the natural means that the legal status of the Penal Code expressly provided, to a certain conviction and sentencing of individuals that have an impact factor. The so-called personal element is dependent on certain conditions exist individuals like, such as job, gender, etc., is the fact that characteristics of criminal identity. ? As to that, almost more fully reveal the identity of the natural essence of criminal law, with a certain degree of rationality, but also flawed. This is because the

    identity of some individuals is not necessarily criminal law expressly provided, through the criminal law can also be inferred. For example article 236 of the Penal Code the crime of rape under the main identity of men is not expressly provided, but according

    to the criminal characteristics of the crime of rape inferred. Thus, this claim any errors

stringent.

     In summary, I believe that means that the legal status of the Criminal Code provisions, have an impact on the conviction and sentencing of a certain individual

    elements or units of a certain subsidiary conditions. It can be divided into natural units of identity and criminal status of the Criminal Code. Criminal Identity refers to natural law, have an impact on the conviction and sentencing of certain personal

    factors; unit of the Criminal Code refers to the status of the law, have an impact on the conviction and sentencing of certain subsidiary conditions of the unit. It should be emphasized that the concept of criminal law as discussed in the "conviction" is to

    determine the meaning of the specific offense of "conviction" is not held criminally responsible sense of the word "conviction." In other words, where "conviction" refers to the actors in determining the right application of criminal law and to hold them

    criminally responsible, or the applicable penalties be considered only under the premise of the determination of the specific charges of judicial activities or legislative activities, is different from criminal law to determine the scope of application , it should

    be held criminally responsible activities. Such as the Criminal Law Article 7, paragraph 2, states: "The People's Republic of China national staff and soldiers in the territory of the PRC who commit the sin of this Act, the application of this law." Is not

    on the determination of the meaning of the specific offense of "conviction" activity, but only made clear that the applicability of the principal Law. Therefore say this paragraph provides that "the state personnel and military personnel" is not a criminal

    identity, but a general sense of identity. "Sentence" refers to the premise of his conviction under the actors to choose species and sentence for sentence, or even included the removal of the sentence of a judicial or legislative activities, as distinct

    from identifying the criminal kinds of criminal law or the applicable principles of judicial sentencing activity. As Article 35 of the Penal Code provides: "For the criminal aliens, and could apply additional application or deportation." This is against

    foreigners types of principles and regulations applicable penalties. And therefore can be said that the provisions of the foreigners here, not a criminal identity, but a general sense of identity.

     2. Pure natural person guilty of the concept of

     As a class of crime, the identity of offenders is provided for by law to implement the criminal acts of the actors in the criminal law has the status of the elements or statutory penalty for the convicted criminal plot.

     With actors that have the status of the main body of criminal law as guilty as the identity of a natural person or a unit of capacity as the standard, can be divided into two natural persons as guilty as guilty of committing and unit identity. In other words,

    a natural person is committed as provided by law to implement the criminal acts of natural persons in criminal law has the status of natural elements or statutory penalties for conviction of crime plot. Units committed identity is defined by law to implement

    the criminal behavior of units in a unit with the criminal law when the identity elements for a conviction of crime or statutory sentencing plot. Such as the Penal Code Article 236 provides that the crime of rape, as well as the Penal Code Article 243,

    paragraph 1, paragraph 2, staff of state organs such as the crime committed by bringing false charges against a natural person that is guilty of identity. The Penal Code Article 325 illegal to foreigners through sale, gift of precious cultural relics, as

    well as crimes under the Penal Code section 396 owned assets such as the crime that is committed units of identity.

     From the above the concept of a natural person can be seen as criminals, pure

natural person is guilty under the law to implement the criminal acts of natural persons

    in criminal law has the status of natural elements for a conviction of crime.

     Second, different kinds of criminal status is guilty of pure natural person guilty of the common conviction doctrine Review

     While there are different kinds of pure status of common criminals who committed by natural persons convicted of identity issues, Supreme People's Court in the "on the trial of corruption, how to identify cases of post invasion and occupation of several

    issues of common crime, the interpretation of" third and "economic crimes courts throughout the nation work Summary of the Forum "(November 13, 2003 release) Article 2, paragraph 3, made a clear provision, but the theoretical knowledge and practice of judicial practice is not enough unity. Some advocates were convicted, some advocate multiple crimes, some advocates in accordance with the principles Imaginative Joinder of Offenses, and some advocated unification by ringleader of the criminal nature of the conviction, some advocates in accordance with the principles of Lapping of Legal Provisions. Review of combination of the following cases are as follows:

     Accused Lin Chun, male, born in 1952, the original (state-owned) certain Huaneng

    silica Ltd., the legal representative, the Department of the law of the State entrusted with public service staff. September 22, 1999 were arrested. The accused Panmou, female, born in 1965, the original XYZ Co., Ltd Huaneng Finance Manager of silica fume and the Yangtze River Futures certain business department of accounting, there is no national staff capacity. September 10, 1999 because the case has been released on bail, June 9, 2000 arrest. A Court of First Instance finds that: the accused the state Department of Lin Chun-XX Huaneng Fume Co., Ltd. (hereinafter referred to as

    Chinese silicon companies) the legal representative and general manager, national cadres; Panmou accused the Department of Chinese silicon Corporate Finance Division Manager and the Yangtze River Futures A A Sales Department (hereinafter referred to

    as the Yangtze River Futures Department) accounting. January 1996, the accused Chun Lin and Zhang, Chen, Lu Mou Zhang, Daimou strong (both handled separately) each invested 10,000 yuan, Total 5 million, established by the Ministry in the Yangtze

    River Futures, "Lee Hill "Private futures account (account number 88086); defendant Panmou mobilization in the spring, under Lin was also established by the Ministry of the futures," Hwang strong "personal futures account (account 88084), Hwang has

    strong indoor personal funds into RMB 4 million. In the same year by the end of December, the defendant instructed the defendant Panmou Lin Chun, respectively, of their year, "Lee Shan", "Hwang strong" account for the use of public funds futures

    speculation losses 248,832 yuan and 139.66 thousand yuan, totaling 388,492 yuan, red into their futures department of the company's losses in the Yangtze River section, a total loss as reported deal. December 31, 1998, Chinese silicon together with other

    companies in the futures division of the Department to write off operating losses, so that the ownership of public funds have been violated. A Court of First Instance that the Chinese company's loss-making silicon-paragraph write-off act took place in 1998,

    should apply to criminal acts at the end of the law, the accused Lin Chun, Panmou as a state-owned company engaged in official business, using his position to facilitate the , misappropriation of public funds 388,492 yuan, their behavior had constituted the

    crime of corruption. Soon after the incident, the defendant Lin Chun-out stolen money

    32.75 thousand yuan; Panmou the defendant to withdraw 15,000 yuan illicit money. In the common corruption, crime, the defendant Lin Chun plays a major role, the

    Department of principal, in accordance with the participation of all its criminal penalties; Panmou the defendant played a secondary role, their accomplice, according to law, mitigation of punishment. In accordance with article 93 of the Penal Code,

    Section 382, Section 383, paragraph 1, item 1, article 25, paragraph 1, article 26, paragraph 1,4, article 27, the provisions of Article 64, sentenced the Thirteen years in prison accused Lin Chun; Panmou sentenced the defendant in prison for five years. A

    second instance court held that the appellant Chun Lin Department of XYZ Co., Ltd Huaneng silica entrusted with public service national staff, as knowing themselves and the Panmou futures losses of private speculation, and personal futures account has

    injected public funds cases, still use his position to facilitate and conceal themselves and the company's employees in private speculation futures Panmou truth reported fraud losses, and ordered Panmou to futures losses caused by the company in the Yangtze

    into the Futures Department of loss, by a total of as reported that loss treatment, total 119,596.40 yuan, their acts constitute a crime of corruption. The appellant Panmou Fume Co., Ltd Huaneng Department of certain contract workers, there is no national

    staff capacity, when he knows his loss of personal futures speculation, and personal futures account has injected public funds case, still listen to the instigation of Lin Chun the use of financial managers and accounting positions at the convenience of its loss-

    making company into the Department of loss in the futures section, a total loss reported for treatment, personal income 69.83 thousand yuan, is a relatively large amount, their actions constituted embezzlement ( accordance with the December 31, 1996 was set by

    criminal charges, the charges from October 1, 1997 was changed to post Embezzlement). Given China's Huaneng Corporation, Zhejiang, and local governments to consider the relationship between the company employees for non-personal relations

    to other households losses, has agreed to reported loss, while Lin Chun as the principal case, they should conceal fraud after the reported loss of and Panmou should bear full responsibility for the share of part; reported loss for the company has agreed to part, it

    should not be held responsible. The first instance found that the amount of corruption Lin Chun 388,492 yuan, there was indeed wrong, should be corrected. The appellant shall bear the Panmou "Hwang strong" loss account reported that the amount of one-

    half, that is 69.83 thousand yuan's responsibility. The first instance found that the amount of personal income Panmou 139.66 thousand yuan of the evidence is insufficient, be corrected. Meanwhile, the original verdict identified the perpetrator in

    this case December 31, 1998 ended, contrary to the objective facts and the law, is a recognized error. Case behavior of persons reported loss, balance the accounts of the behavior of time December 31, 1996, the day when the end is a criminal offense. In view

    of July 18, 1985, "Supreme People's Court Supreme People's Procuratorate on the current economic crimes in the handling of specific application of the law a number of questions answered" The first clause (b) of the regulations, not only in time can not be

    enacted after its February 28, 1995 "The National People's Congress Standing Committee on Company Law on the Punishment of violation of criminal decision" to judicial interpretation of the effect, and the answer refers to the entity the contents of

    "collusion" type of economic crime cases to the issue of convictions The case is a non-

    collusion-type cases. "Supreme People's Court on the trial of corruption, how to identify cases of post invasion and occupation of several issues of common crime, the

    interpretation of" self-July 8, 2000 shall come into force, for the purposes of the previous acts of interpretation in accordance with the principles of criminal law have retroactive effect, shall continue to be from the lighter and do the old rules, the case

    were convicted of a lesser conviction than taking the main culprits, according to law were convicted, Panmou act legitimately constituted embezzlement. Original verdict found the defendant's conduct constituted a crime of corruption Panmou, is convicted

    of an error should be corrected. During the second trial, the appellant Panmou back clear of all personal proceeds, do show repentance. In view of the Court on the appellant the amount of corruption in the spring found that Lin, as well as the conviction of the appellant Panmou and occupation have been found to make significant amount of correction, according to the law commuted: the appellant (the trial the defendant) Lin Chun guilty of embezzlement and sentenced to imprisonment for ten years; the appellant (the trial the defendant) Panmou guilty of embezzlement and sentenced to detention for three months.

     The cases involve different kinds of criminal status to use their positions to facilitate their co-offenders committed to the identity of natural persons convicted of theoretical

    issues. For this case, that is, with the corruption of the main qualifications of national staff has a duty Lin, Spring and embezzlement (October 1, 1997 before the implementation of the current Penal Code in 1997 known as "embezzlement"),

manager of the main qualifications accounting Panmou common occupation of state-

    owned companies conduct of public property, how?刑法理论界and practitioners there

    are four kinds of observations: reposted elsewhere in the paper for free Download

    Center http://

     The first, convicted, respectively. Namely, Lin Chun-set corruption, embezzlement

    Panmou set (as December 31, 1996 was set by criminal law on charges of embezzlement, October 1, 1997 since the charges were changed to post Embezzlement).

    Its theoretical shortcomings mainly the following: excessive emphasis on the particularity of their status to criminal neglect of a common crime, the integrity and common crime, the link between human behavior, contrary to the principle of a common crime, both charged with crimes against the principle of consistency , but also runs counter to adapt the principles of criminal guilt is not conducive to conviction and sentencing. In detail before, that is, a conviction that the deficiencies were, in this will

    not dwell.

     The second, according to multiple crimes processing. Pairs of Lin Chun, Panmou have found its not only constitutes a crime of corruption, but also constitute embezzlement, according to a crime of corruption and embezzlement for which they

    were, after sentencing, in accordance with the principles of multiple crimes should be implemented to determine their sentence. In this view, PAN number two have a common crime committed intentionally, in their common objective to implement a number of acts, from the whole in line with a number of constituent elements of crime. In the present case, Lin Chun used his position to facilitate the implementation of the misappropriation of behavior, and participated in the conspiracy Panmou committed embezzlement, guilty of two counts of corruption crimes and embezzlement; Panmou the convenience of using their own misappropriation of any accounting unit of property, acts constituted embezzlement (based on December 31, 1996 was set by criminal charges), also participated in the conspiracy Lin Chun-corruption, but also

    constitute the crime of corruption. ? In my opinion, this view is questionable. First of

    all, this view of the deliberate confusion of a separate crime and common crime, intentional two different concepts, and the lack of a clear criminal intent and criminal intent the contents of the two different concepts. If it is a separate crime, Lin Chun has a corrupt intent, its content is its deliberate use their status with the national staff to facilitate the conditions for embezzlement of public property units, Panmou with deliberate embezzlement of its content is its deliberate use their Renjing Li, the accounting unit of the convenience of embezzlement of public property; if it is a common crime, Lin Chun, Lin Panmou have to use the spring to facilitate the national staff positions and the use of Panmou corporate finance manager, accounting positions to facilitate the embezzlement of public property unit The criminal intention, which is a common means to contact them under control, the common criminal intention, this kind of deliberate common criminal intention, in terms of quantity there is only one, not just a few. This case is a common crime, their criminal intent is a common criminal intention, there is only one. Secondly, from an objective point of view acts of common crime, the greatest feature is its behavior has integrity, in terms of quantity there is only one act, that is a common criminal acts, can not be in a number of criminal acts constitute the elements. Therefore, this case is a crime rather than the number of crimes, should not be handled in accordance with the principle of multiple crimes.

     A third, according to the principle of Imaginative Superposition Crime processing. In this view, Lin Chun, Panmou possess the identity is a parallel relationship, but between different identities constitute the behavioral characteristics of the same or similar. This is part of a behavior has violated the two are not mutually inclusive and that the corruption charges of embezzlement and duties, is guilty of competing imagination, it should be from a re-at fault. I believe that the theory of competing guilty of criminal law theory from Japan, Germany, its intended mainly from the content of the law point of view, constitutes a crime, the methods, means and other elements on

    the competing objective. Imaginative Joinder of Offenses committed with the Lapping of Legal Provisions difference is that the two offenses have been committed and being inclusive or cross-tolerance relationships. Corruption and duties of criminal

    Embezzlement constitute cross-ties, but the main elements of crime, there are some

    differences. Therefore, corruption is embezzlement Lapping of Legal Provisions and duties of the relationship between the relationship between competing rather than imagined.

     The fourth type of case, it should be according to principal convicted of the criminal nature of unity, its legal basis for the Supreme People's Court "common corruption, the case of interpretation of occupation duty," the provisions of Article III: "companies, enterprises or other units, do not have national the identity of staff who colluded with the national staff, respectively, to facilitate the use of their position, so that together accounted for as a unit of property illegally already, according to the criminal nature of the principal convictions. " From the explanation in terms of original intent, which the first part of "companies, enterprises or other units, do not have the status of national staff person" should literally be interpreted restrictively, that refers only to have "companies, enterprises or other units in the position to facilitate the "person, and only this part of the people the possibility of using the above-

    mentioned units, functions to facilitate the criminal law office in 1997 Elements of embezzlement crime," used his position to facilitate "the requirements. In the pre-1997

    one-way or subsidiary Criminal Law Criminal Law Embezzlement positions

    corresponding constituent elements are "making use of convenience" or "position to benefit." Seriously look into these positions before and after the two laws constitute the elements of embezzlement in the crime, changes in the restrictions is not difficult to understand the above explanation. Can be seen, companies, enterprises or other units in the non-office is only responsible for staff working in general to talk about the use of "convenience functions" If these people in collusion with the national staff, co-unit

    property will be accounted for as an existing illegal According to the Penal Code article 271, paragraph 2, the provisions of Article 382 of the Penal Code, as well as "common corruption, the case of interpretation of post invasion" the first, shall be punished as an

    accomplice in the crime of corruption, instead of the application of the interpretation of Article III. At the same time, it can not be applicable to Article III.

     "Common corruption, the case of interpretation of occupation duty" third way is

    actually to solve a conviction had it that the principal decided to at least the following situations can not solve the problem conviction: first, the co-perpetrators to justice is

    an accomplice, the real culprits State staff members or ordinary people, because justice

    is not difficult to identify the. Second, the national staff with the company, enterprise or other units do not have the status of national staff who are the main culprits are all statutory functions embezzlement, or are scheduled to corruption, it is difficult to

    choose. Third, difficult to distinguish when the main accomplice.

     Fifth, in accordance with the principles of Lapping of Legal Provisions. Lin Chun, Panmou common criminal acts are consistent with the 1997 Criminal Law Criminal

    Law before a single line, "Supplementary Provisions of corruption and bribery" in regard to corruption constitutes a crime, but also with "breach of Company Law on the Punishment of the Crime of the decision" under the occupation crimes (has been to

    absorb the existing section 271 of the Penal Code) and that constitute a crime, and chose a felony "crime of corruption," where the law the provisions of Article of the Lin-chun, Panmou unified set of embezzlement.

     3, combined with "crime constitutes a line to say" in accordance with the principles Lapping of Legal Provisions

     Lapping of Legal Provisions in accordance with the principles of the author in favor of the treatment, advocate Lin Chun, Panmou unified set of embezzlement. The reasons

    are: Lin-chun, a common criminal acts with Panmou Lapping of Legal Provisions characteristics. Lapping of Legal Provisions There are four characteristics: First, the implementation of the perpetrator of a criminal act. The case is a hybrid of the main

    perpetrators of criminal acts are a common crime. The second is a criminal act (co-

    offense) involves a number of charges. Third, a number of charges there is a certain logic, this logic relations, including a number of charges where the law of crimes contained in Article affiliation between composition and cross-ties. ? Fourth, Lapping

    of Legal Provisions is static, that is, France article or cross between the affiliation relationship is inherent in the existence of various legal provisions, not because of the

    involvement of criminal conduct exists. As Article 382 of the Penal Code and the Penal Code the crime of corruption article 271, paragraph 1, constitutes a criminal Embezzlement duty cross-ties that is. The relationship between competing Imaginative Joinder of Offenses is due to the involvement of criminal conduct exists, is dynamic. If the perpetrator fired a single shot killed one person and injured one person involved in its conduct after the shooting of intentional assault and deliberate homicide crime

    composition of the relationship between competing. Clearly, corruption, crime constitutes the crime of embezzlement with the job (according to December 31, 1996 was set by criminal law on charges of embezzlement) and constitutes a crime, there is cross-cutting relationships. Long words: the object of corruption is a public property (also known as hybrid property) title, the main national staff or quasi-national staff;

    duties Embezzlement is the object of public and private property ownership, the principal is a company, enterprise or other units managers and factory directors and other duties, but does not belong to the public service personnel. ? corruption and

    duties Embezzlement means or methods were similar, in accordance with the principles of Lapping of Legal Provisions dealing with the above-mentioned case is correct, I fully

    agree with.

     "Common corruption, the case of interpretation of occupation duty," the provisions of Article III to "constitute a crime in line with the common saying" has brought new

    problems. So-called common crimes constitute the line that refers to the whole study and those of criminal law as a mixed non-criminal status to the main common criminal,

    as long as the co-offenders have a common mens rea, and the sense of contact between

    them, their common criminal acts in line with provisions of criminal law under the constitution of crime committed by pure identity, unity of all people convicted of common crimes, offenders are punished to the pure identity, or non-status offenders

    punished. In short, there is the Criminal Code as those with non-criminal status is

    based on a common co-committed to a specific mens rea as to constitute elements of crime, offenders are punished pure identity. ? In accordance with this theory point of

    view, a third provides a common criminal acts, not only in line with the Penal Code article 271, paragraph 1, of its functions under the criminal Embezzlement composition, consistent with Article 382 of the Penal Code and Article 383 of the criminal provisions of corruption composition. This same criminal acts, violated the two charges. In comparison, on the corruption of the Statutory Sentence heavier than on the duties of embezzlement, according to choose a weight off at the principles for the provisions of article III of common crime, shall be in accordance with Article 382 of the Penal Code and article 383 provided for embezzlement to conviction and sentencing. This argument with the "economic crimes courts throughout the nation work

    Summary of the Forum" (November 13, 2003 release) is consistent with the provisions of the relevant parts of the. The "minutes" in article 2, paragraph 3, clearly states: "For the companies, enterprises or other units, non-national staff and national staff

    collusion, respectively, to facilitate the use of their position, so that together illegal possession of property in this unit, the should try to distinguish between the main accomplice, according to the criminal nature of the principal offender conviction. If all co-perpetrators in the crime's status, role very difficult to distinguish between the main accomplice can be convicted and punished corruption. "It was suggested that the rationale behind such a requirement in its Imaginative Joinder of Offenses in theory

belongs to the Criminal Code, namely, on the one hand, the state staff in the use of non-

    national staff positions to facilitate the illegal possession of units of property, to become accomplices Embezzlement duties; the other hand, the use of non-national staff of

    national convenience of staff duties and become an accomplice in the crime of corruption. According to Imaginative Joinder of Offenses, "choose a felony" in handling the principle should choose a heavier punishment of crimes that corruption and sentenced accordingly. Moreover, the role of the co-offender status equivalent

    cases, the crime was actually used by the functions of national staff to facilitate an accomplice in the crime of corruption is liable, more in line with Article 382 of the Penal Code, paragraph 3, of the original intent. ? In my opinion, such an

    interpretation questionable. Lapping of Legal Provisions have committed the biggest difference with the Imaginative Joinder of Offenses is that the former is static, the

    latter is dynamic. Namely: When a criminal act committed by the same time, the number of overlap between the articles of law or cross-ties, is a regulatory rather than

    competing Imaginative Joinder of Offenses; as a criminal act committed by the same

    time, a number of law there is no overlap between articles or cross-ties, is competing

    laws and regulations rather than Imaginative Joinder of Offenses. ? my opinion,

    corruption, crime and the respective positions where the articles of law Embezzlement

    the existence of cross-relationship is static, both Lapping of Legal Provisions not imagine competing is competing.

     Of course, the above-mentioned case, the use of lighter from the old and the

    principle should apply to "Supplementary Provisions of corruption and bribery," a unified set of embezzlement.

     In addition, in dealing with such cases, should also be aware of the following two situations: First, the behavior of people do not facilitate their advantage of his position,

    but use one of the functions of the facilities, either the main body of corruption positions, either post invasion the main body of the crime of duties. In this case, such as the use of the former, a unified set of embezzlement and corruption because of its full

    compliance with the criminal composition; such as the use of the latter, unified statutory functions embezzlement in full compliance with its duties constitutes a criminal Embezzlement. Second, the actors did not use any kind of office facilities. In

    such cases, the identity of the perpetrator can not be guilty, only be guilty of non-

    identity, such as a general embezzlement (Article 270 of the Penal Code of 1997) or fixed (general) to defraud (section 266 of the Penal Code of 1997 ) and so on. Because

    this case is neither fully consistent with the crime of corruption posed by crime and do not fully meet the job constitutes a criminal Embezzlement. In short, depending on national staff with the company, enterprise directors, managers, and accounting co-

    occupied units in the behavior of property is entirely in line with the crime of crimes which constitute the final re-constituted in accordance with a common crime in line

    with the principle that to deal with.

     A second instance court found that Lin Chun, Panmou constitute common crimes, and using lighter from the old and the principles applicable to December 31, 1996 conviction and sentencing of criminal law at the time was right, but the convictions were not quite appropriate. A second instance court found that Lin Chun is legally

    entrusted with the national staff engaged in public service, using the functions of national staff to facilitate, should be a crime of corruption; Panmou is the company's accounting, the use of non-state of their company's accounting staff functions to

    facilitate, should be Embezzlement (October 1, 1997 count of changed positions from embezzlement). This practice actually undermined the integrity of the common characteristics of a crime is to Lin Chun, Panmou to examine separately the behavior

    of their results. The author argued that Lin should be the spring of Panmou acts as a common unified whole, in accordance with Lapping of Legal Provisions Act criminals choose a weight off of the principles of office, according to a heavier sentence provisions

of corruption Lin-chun, Panmou unified set of embezzlement.

     Note:

     ? Sui Guang-wei: "Criminal Law Criminal Law and Identity Identity - On the

    Chinese identity construction and improvement of the criminal law", in "Contemporary Law," 1992 No. 4, p. 45.

     ? See He Bingsong editor: "Criminal Law Textbook (according to the 1997

    Criminal Law Amendment)," China Legal Press, 1997, p. 239.

     ? Chen Xingliang book: "co-commission of a crime" (second edition), China Renmin University Press in November 2006 edition, p. 312.

     ? Zhao Bingzhi editor: "China's Criminal Law Cases and scholarly research," sub-

    series (6), Law Press, 2001, p. 16 ~ 22.

     ? Chen Xingliang, GONG Pei-hua, Li Qi Road read: "Lapping of Legal Provisions theory", Fudan University Press, October 1993 1st edition, p. 13 ~ 22.

     ? Zhou luan, Zhang editor: "Criminal charges of sperm release," People's Publishing House in September 2003 2nd edition, p. 452 ~ 453.

     ? See Xu retained: "Mixed joint criminal conviction of the main studies", in the "People's Attorney" in September 2001, No. 9, p. 54 ~ 57.

     ? See Wan Exiang, Zhang editor: "The latest interpretation of the criminal legal documents", People's Press, June 2005 1st edition, p. 46.

     ? Zhao Bingzhi editor: "The new Penal Code Tutorial", China Renmin University

    Press in February 2001 1st edition, p. 269. Reposted elsewhere in the paper for free download http://

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