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Also on committing Lapping of Legal Provisions_339

By Howard Hall,2014-10-30 09:28
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Also on committing Lapping of Legal Provisions_339

Also on committing Lapping of Legal Provisions

     Summary Lapping of Legal Provisions include, and only guilty of committing, including tolerance and cross-competing

    guilty of two kinds of competing. Lapping of Legal Provisions

    in essence, constitute the elements of competing, different circumstances of the crime of simply sentencing Lapping of Legal Provisions are not competing with the kinds of crime, the structure of the different elements that constitute a crime, in particular between criminal law and ordinary

    criminal law does not exist between the law of Competing relationship; Ershi simply because the fact that a number of specific crimes on the acts of a method of compliance, nor is it Lapping of Legal Provisions. Lex specialis, complex is

    better than a simple law is the principle of Lapping of Legal Provisions of the Act shall apply.

     Key words Lapping of Legal Provisions / crime number theory / Analysis / Judicial Application

     First, the characteristics of committed Lapping of Legal

    Provisions

     Competing Lapping of Legal Provisions and regulations, the legal title of a competing among the three, and sometimes used in the same sense, sometimes in the sense of the relative difference between the (Note: In a different sense of users,

    if any, scholars believe that , Lapping of Legal Provisions refers to the normative content of the performance of the criminal law the form of competing, and the law refers to the competing normative content of the criminal law and statutory

sanctions that constitute a crime in competing.). 1 In my

    opinion, whether in the same sense, the use of these titles is not very important, the key is to first make it clear that in number theory or a competing theory of the crime (Note: In the Chinese criminal law theory, in general no "Lapping of Legal

    Provisions committed "in the title, but only" Lapping of Legal Provisions "(also known as the competing laws and regulations, legal competing) concepts. This is because China's criminal law scholars generally believe that Lapping of Legal

    Provisions is to reveal the different provisions of the Criminal Code (section) of Elements of crimes under the extension there is overlap in the implications of cross between a concept, indicating that the provisions of criminal law system, a particular structure, Lapping of Legal

    Provisions is not a crime. But, as some scholars have pointed out that any patterns of crime is a kind of legal phenomena, are ultimately related to the applicable law of conviction and sentencing of the problem, explain what actually happened

    Lapping of Legal Provisions commit criminal acts, if the specific breach of the law competing with each other, it is only from a dynamic point of view reveals the provisions of criminal law within the provisions of the actual contact (Jiang Wei. patterns of crime Theory M. Beijing: Law

    Press, 1994, P402-403). Therefore, "Lapping of Legal

    Provisions committed" category made a positive significance in the crime of a few patterns Lapping of Legal Provisions in the study is also very necessary to have committed.) in which to

    study a different method of competing between the problems of its object of study does not include a number of competing laws or regulations. As to whether the different legal provisions into the criminal law in the same one, in the do

    not ask. Of course, the comparison, the use of number theory in sin, "Lapping of Legal Provisions" than the use of the word "competing laws and regulations", "legal competing" is more scientific and rational.

     Lapping of Legal Provisions committed is guilty of the

    kind of competing. Competing guilty of committing, including pure and impure competing competing committed. Imaginative Superposition Crime competing with the real offenders (multiple crimes competing) involves multiple legal provisions

    and charges of the judge, are pure competing committed; while committing Lapping of Legal Provisions constitute the only

    element of overlap, this Although the kinds of patterns of crime in the appearance as if competing with several provisions of the Criminal Code, but in essence it is a criminal law provisions to exclude other criminal law provisions applicable to the phenomenon, so they are considered as pure competing committed.

     What is Lapping of Legal Provisions? Lapping of Legal

    Provisions article or committed relationship between the Chinese and French? At present several types of representation theory, such a view:

     1. Advocates the content of a law for another legal provisions included in the content, or law of tolerance that

    exists between the relationship in order to constitute a competing laws and regulations. Specifically, when a criminal act committed two legal provisions at the same time, the only one of them the entire contents of the law for another part of the law, when the content can be regarded as Lapping of Legal Provisions; if one part of the law for him a When the law as part of the content is not Lapping of Legal Provisions, but Imaginative Joinder of Offenses. 2 3 (P163)

     2. When a criminal act that violated two statutory

    provisions at the same time, if the relationship between the two legal provisions and inclusive, constitutes a competing self-evident laws and regulations; if the relationship between the two is the cross, that is a part of the Act reads as

    Another part of the law reads, but also constitutes a competing laws and regulations. 4 (P295-296) Some scholars

    believe that cross is coincident with the form of the relationship between the articles of law Lapping of Legal Provisions should be summarized as coincidence. A number of legal provisions, paragraph or several of the provisions of a crime, but also the number of legal provisions. 5 (P603)

    Lapping of Legal Provisions in two basic forms: (1) contains the relations between the whole Lapping of Legal Provisions.

    With two law constitutes the nature of identity crime as a prerequisite to the crime, constituted one or more elements to the amount of extension of the scope of comparison, a large range, including the scope of small, on the relationship

between the formation of such a coincidence that the so-called

    "one Law of the full content of a law for him as part of the contents of the article. " (2) of section 2 Law of the composition of the respective one Lapping of Legal Provisions

    overlapping each other. If the crime of fraud and a trickster (non-property object exception). 5 (P604), some scholars

    will be competing legal form of the relationship between the minimum summed up the relationship between affiliation and cross. The so-called subordinate relationship, expressed as a method of composition of elements included in the overall composition of the other elements of the Law; the so-called

    cross-cutting relations, expressed as a law stipulates that a certain element of the crime, constitutes a logical method of

    containing B The composition of the corresponding element, while the other elements of B law also includes a method of corresponding constituent elements, and the two legal provisions on the whole non-subordination. Subordinate

    relationship can be divided into separate competing competing competing and tolerance. Competing for the independent performance of a law contained in Article in the scope of conditions that constitute an article covered by another law, several legal provisions on the contents of competing on both the logic can be evaluated. Such as protecting the crime and cover up the crime of drug offenders among the articles of law, the crime of theft and illegal logging in forests between the articles of law, that is, the relationship between the

    independent competing. Tolerance was manifested as a competing method of the composition of the elements contained in the content of another law for the constituent elements of inclusiveness, with the connotation of great articles of law

    are fully evaluate the competing content. According to the commentators point of view, the crime of homicide and injury among the articles of law, crime and traffic accident negligence causing death, this law is the tolerance between the competing relationships. Cross-ties are also divided into

    two kinds of competing - competing interaction competing with the partial one. Act refers to two competing interaction cross-section overlap, the method of competing is the overlap between the cross-section of the case, from the form of

    Article 2 of the Law of the content can be evaluated competing. Crimes such as fraud and trickster of the relationship between the Crimes Act, that is the relationship between competing interactions. Partial hand, refers to a

    competing cross-coincidence of the two laws, the specific

content of competing beyond the cross-section of the law in

    favor of content-rich section of the case, only one method of behavior can be comprehensively evaluated. Completed crime, such as murder and murder among the prepared the articles of law, trafficking in women and children, crime and the crime of child abduction, illegal search of the crime and illegal intrusion stay at the relationship between the articles of law, that is, the relationship between competing partial one. 6 (P13) 7 (P435-444)

     3. That the inclusive Lapping of Legal Provisions Lapping of Legal Provisions is the most basic, the most common and recognized form. As regards the extension of Lapping of Legal Provisions to expand, thereby competing claims there is cross-

    cutting laws and regulations, to be further studied and clarified. 8

     4. Some scholars believe that the so-called law of

    competing criminal law, refers to the same harmful acts constitute crimes under its elements, one of the necessary elements of two or more criminal legal norms. All the competing norms of criminal law between the respective horizontal relationships are built on the hazards for which they regulate the same behavior on the basis of sexual

    relations. Lapping of Legal Provisions in this view does not exist in the so-called independent competing, competing, and partial inclusion of a competing, only the cross-relations

    between the competing, its competing point is the same hazard behavior. 9

     So, Lapping of Legal Provisions in the articles of law committed between what is, what kind of relationship? From the above point of view, the main controversy is: First, Lapping of Legal Provisions in the articles of law committed relationship, is the only index method provided for in Article Elements of the extension on the inclusion relations? Or just the index method provided for in article Elements of the extension on the cross-relations? Or a combination of both?

    Second, the number of Lapping of Legal Provisions of the

    content is limited to crimes against acts? Competing under the articles of law for various offenses, whether the hazards that

have the same behavior?

     On China's criminal legislation relating to content analysis, combined with judicial practice, the actual situation in the operation of a conviction, I believe that, first of all be sure, Lapping of Legal Provisions guilty involved the relationship between the number of legal provisions, both on the inclusive relationship between

    extension , but also the relationship between extension on the cross. From the above point of view, an inclusive relationship between the existence of Lapping of Legal Provisions for the majority of scholars agree, but in the end a view on this is

    denied, the main reason is that: "The number of competing with each other legal norms are not exactly the same, in China's criminal law did not exist in a number of identical legal norms "; in a number of scholars and inclusive relationship between the articles of law, such as the crime of deliberately leaking state secrets intentionally divulging military secrets and the articles of law, its elements that constitute a crime under the still is the cross-relations; one reason for

    competing legal norms of mutual mistake in logic as an

    inclusive relationship, because such a competing legal norms may be unified into a substantially larger areas, such as the crime of deliberately leaking state secrets and intentionally divulging military secrets can be unified as "deliberately

    leaking a secret crime", but in fact the reason legislators can be summarized as one of the adjustment of the criminal laws and regulations are divided into two or more than two specifications to be provided, it is in recognition of their

    own different characteristics. 9 In my opinion, this

    ground is untenable. Because the relationship between an inclusive logic talking about the law set out in Article 2 Elements of the extension on the relationship between tolerance and being tolerant, but not identical to each other competing legal norms, such as the crime of deliberately leaking state secrets and intentionally leaked military secrets, the former is obviously a logical extension of the latter's extension of an inclusive, between the two methods

    has shown the former inclusion of the latter case - but only

    on the extension! France denies the existence of an inclusive relationship between the commentators, mistakenly counting method provides criminal extension of the inclusion content

    (ie a logical part of a coincidence - in the above cases, "the

    disclosure of confidential"), as is the meaning of the same, so as to "criminal law simply does not exist in exactly the same number of legal norms" as an excuse to deny the relationship of inclusion, but will be reduced to its cross-

    relations. Accordance with the theory's logic, not just between competing tolerance does not exist, and even cross-

    relations, Lapping of Legal Provisions in theory has no place, because according to this logic, since "the number of criminal

    law simply does not exist one identical legal norms, "then a different meaning to each other constitute a crime in no way to cross the relationship between the occurrence of (As Lunzhe Suo said, between the competing legal articles constitute an

    offense under the same violations, are even less palatable), The result, inclusive of competing and cross-competing not

    exist, it does not produce the so-called shape Lapping of

    Legal Provisions or the existence of, criminal law, thus in

    theory there is no need to study the so-called committed

    Lapping of Legal Provisions. Still deliberately leaking state secrets and deliberate leaking of military secrets, for example, goes without saying that legislators will act deliberately leaking military secrets from the intentional

    acts of leaking state secrets in independent, separate provision for the crime (through the more specific the subject , special criminal targets set), it gives a specific crime of deliberately leaking military secrets of the meaning

    and deliberately leaking state secrets different

    characteristics, and deliberately leaking state secrets and therefore also in the implications of deliberately leaking military secrets general behavior of excluding out. But it is undeniable that, even in the same time there is the crime of deliberately leaking state secrets and intentionally divulging military secrets on the two charges under the premise of "deliberately leaking state secrets" is also inclusive in the extension of the military 'deliberately leaking military

    secrets ", and this extension on the inclusion not subject to the provisions of Article 2 constitute a crime in France connotation mutually exclusive (that is, the crime of deliberately leaking state secrets in the "deliberately

    leaking state secrets" does not include soldiers "deliberately leaking military secrets," including the case) impact. the actual , in judicial practice, when a soldier deliberately leaking military secrets, we can not deny that this behavior is logically at the same time in line with article 398 of the Criminal Code (deliberately leaking state secrets) and 432

    (intentional disclosure of military secrets sin), but could only confirm that it is only in line with Article 432 of the Penal Code. in accordance with law to deny the existence of an inclusive relationship between the commentators point of view, as this between the two legal provisions there is no connotation of overlap, the military deliberately leaking military secrets behavior can only be regarded as only the

    line of the Penal Code section 432, which virtually ignores the fact, that is: not such a case, there is no Lapping of Legal Provisions, but Lapping of Legal Provisions in the Act applies, there is no doubt that the choice of - It is clear

    that the crime of deliberately leaking military secrets deliberately leaking state secrets than the more consistent nature of the act, but also fully reflect the legislator's intention! If the "no content between the two law of coincidence," based on the military deliberately denied

    leaking military secrets act logically at the same time comply with the Penal Code Article 398 and Article 432, then even the commentators have advocated that exists between the two laws, the cross-section relationship not to mention, because the

    crime of deliberately leaking state secrets "non - military

    personnel, including military secrets leaking state secrets, as well as military personnel, including military secrets leaking state secrets away, "while the crime of deliberately

    leaking military secrets are" the military leaked military secrets "to a special object, a special combination of the two main crimes separated can not cross! can be seen, denied the Law of the relationship between the inclusive logic is obviously unreasonable. from the perspective of China's

    criminal law, inclusive relationships, this law is not uncommon, such as stealing, spying, bribery, and illegally providing state secrets and intelligence crimes (Article 111) in relation to stealing, spying, buying and illegally

    providing military secrets (Article 431, paragraph 2) between the articles of law, production, marketing fake and shoddy products crimes (article 140 section) and the production and selling fake drugs and other eight kinds of crime, the crime of the articles of law between the smuggling of ordinary goods, articles crime (Article 153) and the smuggling of toxic materials system, the crime (Article 350, paragraph 1) between the articles of law, (Note: The smuggling of ordinary goods, goods for crime and smuggling of weapons and ammunition, and smuggling of nuclear materials, the crime of smuggling counterfeit money crimes, smuggling of cultural relics crimes,

    smuggling of valuables crime, smuggling rare animals, rare animal products crimes, smuggling of rare plants, rare plants

    Products crime, the crime of smuggling, pornography, smuggling of solid waste crimes, smuggling, drug offenses and other crimes between the articles of law, there is no relationship between Lapping of Legal Provisions, but only tied for the

    relationship of France. Because the crime of smuggling, after 10 kinds of objects are not " general cargo, goods ", which is different from the" state military secrets "ownership" state secrets "," fake "," Lie Yao "," do not meet hygiene standards

    of food "and so on are" inferior products. "), fraud (section 266) and the fund-raising fraud (Article 192), Loan Defraud Crime (Article 193), notes fraud (Article 195), financial instruments, fraud (article 194, paragraph 2), letters of credit fraud (Article 195), credit card fraud (Article 196), securities fraud (Section 197), insurance fraud (198), the crime of defrauding export tax rebates (Article 204, paragraph 1) of the Act Article , the business embezzlement (article 271) and corruption (Article 382) among the articles of law, the crime of misappropriation of funds (Article 272) and the embezzlement of public funds (Article 384) among the articles of law, a trickster sin ( Article 279) and a trickster posing as military crimes (Article 372) among the articles of law,

    harboring, transfer of stolen goods (Article 312) and the harboring, transferring drugs, drugs, stolen goods (Article 349, paragraph 1), between cover up the crime (Article 310) and shielding criminals, drug offenses (Article 349, paragraph

    No. 1,2) between the articles of law, all inclusive relationship.

     Cross-ties committed Lapping of Legal Provisions exist? In my opinion, the answer is yes. This is because in the Criminal Code, some provisions of sub-sections of different

    crimes that constitute a crime, its extension does have some overlap (Note: I believe that, except for some crime, criminal law be amended Legal Sentence against crime, constitutes a form in the Legislative there is duplication, any legislation would not create a poor extension of the same composition and elements of the crime.), which are part of the overlap of the existence of the phenomenon makes behavior may also meet a number of legal provisions (Note: This shall be Description: The Crime in fact, is consistent with the provisions of the Criminal Code violation or breach of criminal law norms. Penal

    Code provisions and the criminal law norms are both linked and differentiated between the two concepts.) to form the shape committed Lapping of Legal Provisions. For example, fraud

    (Article 266) and a trickster crime (Article 279) among the articles of law, illegal to foreigners through sale, gift of precious cultural relics crime (Article 325) and smuggling of cultural relics crime (article 151, paragraph 2) among the

    articles of law, retaliation framing crime (Article 254) and strikes, revenge accounting, statisticians crime (Article 255) among the articles of law, attorneys, law agent destruction of evidence, false evidence, the crime (Article 306) and help the

    parties to destroy evidence, false evidence, the crime (Article 307, paragraph 2) between the articles of law, each of the two crimes constitute the extension on the existence of cross-ties. Among these are the crime of fraud and a trickster, the former is a general behavior of obtaining property by deception, which is based on state personnel posing as a means of fraudulent conduct, including obtaining property by deception and cheating other non-property

    interests of the two offenses of "cheating property "Some

    overlap, cross, because the latter can be a cheat non-property

    interests, so the logical extension of the former can not include the latter's extension. Again counsel, litigation agents had destroyed evidence, falsified evidence in criminal

    behaviors, both attorneys, law agent to help the parties to destroy evidence, falsified evidence, behavior, but also attorneys, law agent alone to destroy evidence, falsified evidence, behavior, and thus in logic to help the parties to destroy evidence, evidence of the crime of forgery can not be inclusive and defender, law agent destruction of evidence, evidence of the crime of forgery, two counts only in the "help the parties to destroy evidence, falsified evidence" on the part of the contents of overlap.

     Should be noted that the above-mentioned second category

    point of view, some scholars, while recognizing the relationship between Lapping of Legal Provisions, including affiliation (equivalent to I recognize the inclusion relationships) and cross-ties, but the definition of the

    relationship between certain competing, and to subordinate relations and further divided by the cross-ties, in my

    opinion, is debatable. For competing to define the relations between the existence of certain problems, for the time being

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