Research On Phenomenon Of Division Of Crime

The Criminal Law of the People's Republic of China(new criminal law) issued in 1997 has made great adjustments to the Criminal Law of the People's Republic of China(old criminal law), among them, one of the most attractive change is that many new varieties of crime are added into the new criminal law, some of the new crimes are divided from the crimes in the old criminal law, and some crimes didn't exit in the old criminal law, and newly produced in the new criminal law.The academic circle of criminal law pays great attention to this remarkable phenomenon, and many scholars have explained it from different angles. The purpose of this paper is aimed to explore the deeper reasons of this phenomenon, and the whole paper is divided into four parts.Part one is the analysis to the obvious phenomenon of increase of crime in the new criminal law. The amount of crime in the old criminal law is not much, altogether about 100 or less, of which many articles can apply to many harmful behaviors which didn't prescribe in the old criminal law. However, the number of crime in the new criminal law succeeds more than 400, and there exists a trend of increase of crime. Thus, this article makes a conclusion to the set feature of crime between the old criminal law and the new criminal law, and makes a catalogue to these new added crimes in the new criminal law.Part two is to explain the phenomenon of increase of crimes in the new criminal law. There are two reasons which lead to the increase of crimes, one is the principle of a prescribed crime for a legal criminal punishment and balance between crime and punishment, the other one is the factual system of criminal construction. The new criminal law sets up the two principles and made lots of new crimes.Crime division is the phenomenon, and the principles and factual system of criminal construction are the source. The academic circle insists that criminal construction can complete appreciation of fact and value. This article makes a conclusion that criminal construction has its own quality.Part three is the catalogue to the phenomenon of crime division. The classification is based on elements of criminal construction. Under the factual system of criminal construction, crime division is the change of elements of criminal construction, that is to say, crime division has four varieties:subject crime division, subjective crime division, object crime division, and objective crime division.Part four is the analysis to some theories concerned with crime division.Specifically, crime number and overlapping of legal articles have a close relationship with crime division. The discussion about crime number and overlapping of legal articles never stops. The theories of crime number and overlapping of legal articles in Chinese criminal law come from SU, and are affected deeply by Japanese theory and judicial judgment. Theories of SU and Japan has great difference, which makes judicial practice cannot make correct judgment. Chinese academic circle pays much attention to the varieties of crime number. This part introduces the different theories about crime number in German, Japan, Taiwan religion and Chinese mainland, and makes a conclusion that the reasons why there are so many different theories to this issue is that we haven't see clearly the factual system of criminal construction. To the nature of overlapping of legal articles, there are theory of overlapping of legal provisions, theory of overlapping of crime, theory of social relations, and theory of criminal construction. I think, under the conditions of criminal construction and the principles of a prescribed crime for criminal punishment and balance between crime and criminal punishment, overlapping of legal articles is the overlapping of criminal construction, which represents overlapping of crime. Overlapping of legal articles doesn't solve the problem of one crime and some crime, it is naturally one crime, and doesn't solve the problem of criminal punishment, and its core is to solve how to make crime, and the solution principle is how to make it most suitable to the provision of criminal construction. Overlapping of legal articles has twovarieties. In factual system, the basic principle of punishment is special law prevails basic law, and severe law prevails not light law is a supplemented principle.However, in value system, the basic principle of punishment is severe law prevails light law.