Research On The Realization Of The Prohibition Of Repeated Evaluation In Criminal Law

At present,as far as the realization of The prohibition of repeated evaluation is concerned,there are mainly questions about whether to realize The prohibition of repeated evaluation,what kind of principle of prohibiting repeated evaluation should be realized,and how to realize The prohibition of repeated evaluation.On the issue of whether to realize this principle,although The prohibition of repeated evaluation is not clearly stipulated in China’s Criminal Law,it has been widely recognized by the theoretical and practical circles as one of the principles of criminal law.This is because The prohibition of repeated evaluation has a historical foundation,normative foundation,practical foundation and theoretical foundation as the principle of criminal law.First of all,in the historical dimension,The prohibition of repeated evaluation can be traced back to the ancient Roman period.The "litigation competition" and "no matter of reasoning" in ancient Roman law reflected the spirit of prohibiting repeated evaluation.In China’s ancient legal system,the system of dealing with the number of crimes represented by "two crimes are heavy" and "two crimes are heavy" in the Tang Law also embodies the spirit of prohibiting repeated evaluation.Secondly,from the perspective of norms,The prohibition of repeated evaluation can be followed in criminal law and administrative law.The "special provisions" and "determination clauses" in the Criminal Law,the negative recognition of foreign judgments,the case transfer provisions and the penalty discount provisions in the Administrative Punishment Law all reflect the requirements of The prohibition of repeated evaluation.At the same time,the reflection of The prohibition of repeated evaluation in foreign laws and international law can also show the extent of the recognition of this principle.Thirdly,in the practical dimension,The prohibition of repeated evaluation has been consciously and actively applied by defenders,procuratorates and courts in judicial practice.Cases that advocate the prohibition of the principle of repeated evaluation as the basis for judgment or reasoning are widely distributed and generally on the rise.Many courts use The prohibition of repeated evaluation as a basis for judgment or reasoning.This shows that The prohibition of repeated evaluation has a certain judicial effect in judicial practice.Finally,in the theoretical dimension,it is forbidden to repeat the evaluation principle with multi-class theoretical support.The justice of the law constitutes the theoretical basis of the dimension of the law.Distributive justice and corrective justice correspond to the repeated evaluation of the prohibition of legislation and the repeated evaluation of the prohibition of justice respectively.The principle of proportionality constitutes the theoretical basis of the fundamental legal dimension of the Constitution.The three-order sub-principles of the appropriateness principle,necessity and equilibrium principle of the proportionality principle all put forward requirements to prohibit repeated evaluation.The principle of criminal law and the principle of criminal punishment balance are the theoretical basis of The prohibition of repeated evaluation in the dimension of criminal law.The prohibition of repeated evaluation is consistent with the clarity of the law required by the principle of criminal law and the concept of ensuring the possibility of citizens’ prediction,which is an inevitable requirement for the implementation of the principle of criminal law.The principle of prohibition of repeated evaluation and the principle of the balance of crime and punishment are related,which constitutes the bottom line requirements and judgment method of the balance of crime and punishment.The above four aspects jointly explain that The prohibition of repeated evaluation,as one of the principles of China’s criminal law,is reasonable and well-founded.At the same time,from the normative expression,practical effectiveness and theoretical logic of The prohibition of repeated evaluation,it can be seen that the full realization of this principle in criminal law has the value of justice,human rights and efficiency.The prohibition of repeated evaluation is determined by the attribute of the legal principle and the value that can be realized by realizing the principle.The prohibition of repeated evaluation is necessary and must be realized.The main problem facing the realization of The prohibition of repeated evaluation is that the understanding of it is inconsistent within the theoretical and practical circles,which makes it impossible to realize what kind of principle of prohibiting repeated evaluation.Therefore,the basic problems that need to be solved are the ontology of shaping The prohibition of repeated evaluation and establishing the implementation of The prohibition of repeated evaluation.In terms of its nature,The prohibition of repeated evaluation is the principle of rationality,specificity and substance.At the same time,in the criminal law,The prohibition of repeated evaluation is both a legislative and judicial principle,a conviction and a sentencing principle.This means that The prohibition of repeated evaluation needs to be fully implemented in legislation,justice,conviction,sentencing,etc.As far as the basic meaning of The prohibition of repeated evaluation,first,in The prohibition of repeated evaluation,the essence of evaluation is to judge the value of the evaluation object.Because the criminal law has the function of evaluation,the evaluation of the criminal law is the value judgment of whether a certain act is valuable or worthless.Second,the main body of the evaluation is the legislature and the judiciary.In other words,only the legislature and the judiciary can make an authoritative criminal law evaluation.Third,the object of evaluation is the facts of conviction and sentencing circumstances.The definition of the object of evaluation as the facts of conviction and the circumstances of sentencing is not only in line with daily language habits,but also has methodological significance for the realization of The prohibition of repeated evaluation.Fourth,the standards of legislative evaluation and judicial evaluation are different.The legislative evaluation is based on the social harm of the behavior and the personal danger of the perpetrator,and the judicial evaluation is based on the norms of criminal law.Repeated evaluation is a phenomenon in legislative evaluation and judicial evaluation.Fifth,the result of legislative evaluation is the creation of criminal law norms,and the result of judicial evaluation is the declaration of crime and punishment.Therefore,the prohibition of repeated evaluation refers to "in criminal law legislation and justice,it is prohibited to repeatedly consider the same non-valence connotation of the same conviction fact or sentencing circumstances." The standard of repeated evaluation should focus on the same nature,the facts of conviction and the same circumstances of sentencing,and the same non-price connotation.From the perspective of jurisdiction,The prohibition of repeated evaluation can not only govern repeated evaluation in the field of pure criminal law,but also be effectively used on some issues of the intersection of execution and the intersection of entities and procedures.Determined by the relationship between the principle of prohibition of repeated evaluation and the principle of no penalty for one thing and the unified theory of legal order,in cases where criminal law and administrative law intersect,the role of prohibiting repeated punishment is assumed by The prohibition of repeated evaluation.In cases where the criminal law and criminal procedure law are intertwined,from the relationship between The prohibition of repeated evaluation and the principle of non bis in one matter,the two have their own jurisdictions.The negative recognition of foreign judgments reflects The prohibition of repeated evaluation rather than the principle of null and non bis in principle.From the perspective of implementation,it can be concluded by focusing on the conflict between The prohibition of repeated evaluation and the principle of complete evaluation at the academic level,as well as the game between The prohibition of repeated evaluation and the strict policy in theory and policy.The prohibition of repeated evaluation is a rigid principle,which should be obtained.Absolute implementation and implementation,and there should be no exceptions.In addition to clarifying the ontology and implementation of the position of The prohibition of repeated evaluation,it is also necessary to determine which situations are specific to be repeated evaluation,and pay attention to the theoretical hot issues and practical focus issues involving the prohibition of repeated evaluation.Only in this way can the implementation of The prohibition of repeated evaluation be targeted.The identification of repeated evaluation needs to be guided by the theoretical foundation of The prohibition of repeated evaluation,and the situation of repeated evaluation should be found from the two paths of practice and logic,taking the standard of repeated evaluation as the scale.The prohibition of repeated evaluation does not have to be required in the same lawsuit,and the two prohibited evaluations do not have to be required to be criminal law evaluation,and the repeated evaluation beneficial to the perpetrator is not prohibited by The prohibition of repeated evaluation.According to the identification path of The prohibition of repeated evaluation,there are repeated evaluations in the following issues that are highly controversial in theory and practice: some transformational robbery crimes,several evaluations of "escape" in traffic accident crimes,concurrent punishment of several crimes of underworld organized crime,part of the legal effect of recidivism,drug re Several evaluations of the circumstances in the simultaneous application of the offender and the general recidivist,the crime of criminal record,the criminal problem of administrative punishment,and the crime of bribery.Combined with the above examples of repeated evaluation and the basic theory of The prohibition of repeated evaluation,different types of repeated evaluation can be divided.According to the different subjects,it can be divided into legislative repeated evaluation and judicial repeated evaluation;according to the existence of judicial links,it can be divided into repeated evaluation of conviction and sentencing;according to the different evaluation content,it can be divided into repeated evaluation of a single fact and repeated evaluation of comprehensive facts.On the one hand,the above types of division have independent value,which can clarify the understanding of repeated evaluation,and on the other hand,it has instrumental value,which can provide a logical framework for the realization of The prohibition of repeated evaluation.At the legislative level,the realization of The prohibition of repeated evaluation should be carried out from two aspects: the deletion and amendment in violation of The prohibition of repeated evaluation,and maintaining the addition and improvement of The prohibition of repeated evaluation.In the normative level of violating The prohibition of repeated evaluation: First,it is reasonable for repeat offenders to impose a heavier punishment and do not apply probation for probation,which does not constitute a violation of The prohibition of repeated evaluation.However,on the basis of repeat offenders,the sentence will be commuted for criminals with suspended from execution,or life imprisonment and fixed-The criminal’s declaration of no parole is a repeated consideration of the fact that the perpetrator ignores the previous punishment experience and commits a crime again,which violates The prohibition of repeated evaluation.Therefore,it is necessary to adjust the relevant regulations.Second,in the sub-rules of the Criminal Law,some of the "consideration clauses of several crimes" are quasi-provisional provisions,which violate The prohibition of repeated evaluation and should be amended or deleted.These provisions mainly exist in the crimes of organizing,leading and participating in terrorist organizations,organizing prostitution,forced prostitution,organizing,leading,participating in triad organizations and impersonation.Third,the administrative penalty in the crime of smuggling ordinary goods and articles and the crime of disturbing the working order of state organs as a condition for criminalization violates The prohibition of repeated evaluation,so it should be amended and deleted respectively.In the normative level of maintaining The prohibition of repeated evaluation: First,from the perspective of realizing the value and effectiveness of The prohibition of repeated evaluation,and drawing on the legislative models of Germany,Russia and other countries,it is necessary to clearly stipulate The prohibition of repeated evaluation in the General Principles of China’s Criminal Law.And the provisions in the general provisions should adopt a combination of comprehensive provisions and key area provisions.Second,in the current sub-rules of the Criminal Law,it is of great significance to maintain and realize The prohibition of repeated evaluation.In order to avoid "legislative hypertrophy" and promote the universalization of "one-fold break clause" in the imaginary competitive offender,and at the same time retain the "one-fold break clause" that characterizes the competition of Third,the "from the special provisions" that competes in the special relationship law is also of great significance to the realization of The prohibition of repeated evaluation,so it should be recognized and expanded.For example,"special provisions" can be added to the crimes of bigamy,child abduction,obstruction of official duties and dissemination of obscene materials.In addition,some provisions in the judicial interpretation also violate The prohibition of repeated evaluation.It is necessary to abolish the provision of administrative punishment as a condition for criminalization,abandon the practice of using criminal record or administrative punishment as a condition for lowering the threshold for criminalization,and clean up the proposed "consideration clause for several crimes" stipulated in the judicial interpretation.The realization of The prohibition of repeated evaluation at the judicial level should be carried out from the two aspects of conviction and sentencing.In the conviction,it is necessary to emphasize the exhaustion of the conviction facts and prevent the repeated application of the same conviction facts in different crimes.However,in the case of legal competition,imagining competitive offenders and implicated offenders,the fact of conviction may be repeated temporarily and formally,but in the final sense of the penalty effect,The prohibition of repeated evaluation must be maintained.Second,to realize The prohibition of repeated evaluation in the conviction,we should make use of the theory of the number of crimes.In the judgment of the number of behaviors,we should pay attention to the singularity of the subjective resolution and the consistency of the objective situation.In the judgment of the number of legal benefits,we should pay attention to the unity of the qualitative identity and quantitative identity of the protection of legal benefits.In the crime of the establishment of a crime,it is necessary to recognize the competition of cross-relationship laws,and correctly view and reasonably position the pre-and post-exital behavior of punishment.In the number of crimes in the establishment of a crime,we should insist on imagining the status of competing offenders and implicted offenders.Third,in some cases,the facts of the case can be assigned and applied,which can not only effectively maintain the principle of full evaluation,but also avoid the risk of violating The prohibition of repeated evaluation.Fourth,before the legislation is appropriately amended,in the case of partial repeated evaluation,the care function and crime function of Article 13 of the Criminal Law can be taken into play as an expedient measure.In sentencing,first,it is forbidden to re-evaluate the facts of conviction in sentencing,which requires adhering to the principle of one-time exhaustion of conviction facts and following the scientific sentencing steps,while avoiding the re-evaluation of secondary legal benefits.Second,the repeated application of sentencing circumstances is prohibited,which requires the repeated application of the same sentencing circumstances and the repeated application of the same quality sentencing circumstances.Third,in the case of competitive penalties,the focus is on the need to offset the administrative penalty for the penalty,so as to substantially avoid repeated punishment.