| As a system of crime number and sentencing penalty,the continuing crime has had a long history in the continental legal system of criminal law,but it has been abolished successively due to the different implementations of rule of law and the instability of its foundation.Though the continuing crime still exists in Italy’s criminal code,its legislative intent and practical application and theoretical value today have deviated from the standards of the continuing crime,but become close to the clause of real concurrence,whose legal effects too severe;the “continuing behavior” in Germany stops at the form of “singular act in law” and does not enter the co-opetition framework,which becomes an punishment exception;in Japan,the successive crime has actually replaced the continuing crime;Taiwan region of China puts issue of co-opetition aside,and turns to expend the form of “singular act in law”.Judged by the author,by analyzing the deep theories of the continuing crime and reviewing the arguments of retention theory of the continuing crime,the legitimacy of the retention should be denied.The logical contradiction of both subjective and objective theory of the continuing crime makes it unable to fit the amendatory constitution of crime;and the elimination of fault liability form gains the possibility of imbalanced punishment.The fundamental issue of the retention or abolishment is rational measurement between the pros and cons of criminal policy,but its personality doctrine will make it improperly immersed in taterstrafrecht,which violates the principle that crimes are judged by law in a society under rule of law.The confused criterion of judgement of the continuing crime cannot relieve litigation exhaustion in legal practice,a bit change of the rules of homogeneous crimes could resolve this dilemma actually.As for China,where hardly can homogeneous crimes be punished concurrently,the continuing crime contradicts with characteristic system,which highlights its own defects and the incoordination with the legislation and practice.The author advocates that it should be abolished as soon as possible,and back to concurrent punishment of several crimes.On the basis of the refinement of the sentencing standards,the author proposes to diversify the measurement of penalty which will form the sentencing ladder,develop “multiple descending formula”,retain the penalty model of accumulative amount,consider the discrepancy on the basis of the mode of concurrent punishment of several crimes,adhere to the certain basic principle that keeping balance between the crime and punishment.In this way,not only effectively limit the awarding sentence at the break,also it can achieve lighter punishment effect than heterogeneous crimes,but also with China’s criminal law has a better fit with judicial interpretation. |
