The Research Of The Special Relationship Of The Concurrence Of Articles

Concurrence of articles is a common phenomenon in criminal legislation, but also a controversial topic in the criminal theory with a lot of divided views. It is essentially a overlapping of constitutive elements of crimes other than of fixed punishments. To correctly understanding of concurrence of articles should take the core characteristics “comprehensive and fully evaluation”. There is no objection about special relationship as one of the most typical concurrence of articles, but the so-called subsidiary relationship, consumptive relationship and either-choice relationship in the German and Japanese criminal theories are no evidence of contamination in the criminal law of China. The research of special relationship lies in its judicial application, which will keep to the rule that “heavier article is superior to lighter one” under normal circumstances. “Where this Law has other provisions, such provisions shall prevail” is an attentive provision, which should be regarded as the stress of the principle “priority of special articles”. When some special articles provide lighter punishment than the ordinary articles in the Chinese criminal law, the appropriate way is to apply the principle of “severe articles are superior to lenient articles” supplemental. If some harmful action is not suitable to the standard of conviction of the special article according to the criminal judicial interpretation, but it has stratified the standard of conviction according to the general article, such a case should be dealt with the general article.