On The Rules Of Dealing With The Concurrence Of Atypical Articles Of Law

Concurrence of articles stands at the intersection of conviction and sentencing.Since it was put forward in the 19 th century,various discussions on the issue of concurrence have never stopped.The concurrence of articles refers to the dynamic application of law in which an act simultaneously conforms to the criminal constitution of several articles at the same time.The theory of criminal law in continental law countries generally divides the concurrence of articles of law into four kinds of relations: namely special relationship,supplementary relationship,absorption relation and alternative relationship.Since the German criminal jurist Binding proposed these four relations in 1885,few scholars have broken through these four types to discuss the concurrence of legal articles.At present,there are four kinds of arguments about the concurrence of articles in China: one type theory,two types theory,three types theory and four types theory.However,from the perspective of the logical relationship between articles of law,only one of them can be chosen to exclude the application of other articles of law.At present,the principle of judging the concurrence of articles of law in our country is mainly "special law precedes over general law".However,in addition to the typical concurrence of articles,there are cases in which the amount of incrimination of special articles is not reached but the conditions for the incrimination of general articles are met,as well as cases in which the punishment of special articles is excessively light,that is,the so called "atypical concurrence of articles".The different standards of incrimination and the incompatibility between crime and punishment bring many difficulties to the selection and application of law.Therefore,it is necessary to discuss how to deal with and choose the applicable law under the circumstance of "atypical articles of law concurrence".In addition,different understandings of the cross-relation are also closely related to the establishment of the concurrence of articles.Therefore,it isparticularly important to determine the position of the cross-relation in the problem of the competition and cooperation of the articles.The crime of embezzlement of public property by means of stealing and the crime of theft of public and private property have the same or similar characteristics in the objective constituent elements of the two crimes,which are the typical representatives of the "homogeneous" crime.It is also an appropriate example to study the problem of competing articles of law.Taking the crime of larceny and the crime of corruption as examples,by comparing the theories of the concurrence of German and Japanese criminal laws with those of our country,the paper uses the method of logical analysis to determine the conditions for the establishment of the concurrence relation of the articles of law.Logically speaking,there must be a logical species relation among the laws which establish the competing relationship of the articles of law;From the point of view of legal interests,no matter whether it is a single legal interest or a plural legal interest,the legal interests must be identical and overlapped between the legal interests to establish the competing relationship between the legal articles;the concurrence relation of articles can be established by aggravating the constitutive elements and alleviating the constitutive elements.On the premise of determining the relationship between articles of law,the paper discusses whether it is reasonable to adhere to the principle of "special law is superior to general law" when the legal punishment is leniently or when it does not reach the amount of incrimination of special law,and how to deal with or evaluate the conduct with the same or similar behaviors of the constitutive requirements of crime.And also discussing whether the complementary application of general law can be allowed.In the case of decriminalization,allowing the complementary application of the general law and convicting the felony,permitting the complementary application of the general law is the best solution at present.