The Theory Of The Crime Of Examination Replacement

The crime of examination replacement is an accusation written into criminal law for the first time through the Amendment to Criminal Law(IX),when compared with other offenses concerning cheating in exams,it is the first time for China to regulate surrogate exam-taker and the behavior of letting others substitute with the examinee by criminal law.This paper,based on the analysis on some puzzling and difficult problems of this crime,hopes to better fight against such behaviors later in the judicial practice.This paper consisted of five parts:The first part expounds the background and significance of the research,and takes four typical cases as the guide,which leads to the focus of this study.The second part was about the research on the basic problems of the crime of cheating in exams.First of all,this paper collated and stipulated relevant concepts of the crime of examination replacement,which specifically included the concept of examination replacement and the analysis on the “in the national examinations prescribed by law” in articles of law,meanwhile,this paper divided the current national examinations into three categories according to their characteristics and functions and on this basis analyzed the concept of “prescribed by law” embellishing the “national examinations”,with the analysis result being used to determine which of the said three types of national examinations would conform to the definition of this crime on examination.Then,this paper studied the constitutive requirements of this crime,and focused on the analysis on the specific subject of this crime.The third part was about relevant regulations on the punishment implemented by foreign countries on the behavior of examination replacement.In this section,the author selected Japan,represented by continental law system,Canada,with the Anglo-American law system as the representative,and the Taiwan region sharing similar cultural education and other aspects with mainland China which can be traced to the same origin as the objects of study,described that what kind of accusations are taken by the countries or regions mentioned above to convict and punish the conduct of replacing others in exams,made a horizontal comparison with the crime of examination replacement in China in terms of the crime constitution and criminal punishment,and found out the similarities and differences between them,hoping that it can serve as an important reference for the perfection of this crime in China’s legislative activities in the future.The fourth part was the analysis on the criminal pattern of this crime,which mainly consisted of two parts: the cessation pattern of crime and the pattern of accomplice.In the cessation pattern of crime,this paper would focus on analyzing the “begin to do” and “accomplished crime” of this crime.Firstly,the author stated his own views on the above issues and gave detailed reasons for supporting the above views.Then,it was compared with different viewpoints in other papers by using the comparison method,while the problems arising from them were analyzed.In the pattern of accomplice,this paper discussed that whether this crime belonged to correspondence offense;what crime the omission of the invigilator would be;the role and status of parents participating in the examination replacement in committing a crime,as well as whether the identity of parents involved in this crime will make their conviction and measurement of penalty different from others.The fifth part was the identification of this crime’s organizational behavior and the study of modest restraining.The first part of this chapter was the qualitative analysis on organizational behavior in examination replacement,with the research focus being that whether the behavior was convicted of this crime or the crime of organizational test cheating,along with the distinction between the two crimes.There were different types of qualitative definition of intermediary behavior in criminal law,so the problems that to what type the intermediary behavior in examination replacement shall belong and how to conduct qualitative definition would be discussed in detail.The second part of this chapter was the study of modest restraining,which mainly expounded the different opinions of all parties in the legislative stage of this crime,whether it was necessary for this crime to impose penalty on the substituted examinee,whether it was reasonable to carry out “the same crime and the same punishment” for the two acts of perpetrating of this crime,with some corresponding suggestions on legislation being proposed.