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


     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