| The complicated criminal legislation in our country causes the phenomenon of overlap of criminal law articles more prominent,so it is of practical significance to research the overlap of criminal law articles.The main types of overlap of criminal law articles are special relationships,and at the core of special relationships for research is the problem of application of law.For a long time,Chinese criminal law circles have been arguing about the rules of application of special relationships,the focus of the dispute is on whether the absolute or relative priority of the special law? At present,the rules of application of special relationships mainly include “the theory of absolute priority of heavy law articles”,“the theory of supplementary application of heavy law articles” and "the theory of absolute priority of special law articles ".Since many special law articles in the specific provisions have phenomena that are the legal penalty lighter than the common law articles,it is inadvisable for “the theory of absolute priority of heavy law articles” which will cause the setting of some special law articles meaningless.The biggest criticism of “the theory of absolute priority of special law articles” is that may lead to “inadaptability of crime and punishment”.The theory of “supplementary application of heavy law articles can make up for the malpractice of “inadaptability of crime and punishment” caused by “the theory of absolute priority of special law articles” in some sense,however,there is a danger of “the measurement of punishment countervail the conviction”.According to the logical criterion,the relationship between the same law articles can be divided into cross,inclusion and totally different relationships,and the different law articles of in the specific provisions including the relationships of cross or inclusion,formally speaking,which are preconditions for the overlap of criminal law articles.The identity of legal interests are the substantive standards for the overlap of criminal law articles which including the same and inclusion of the extension of the legal interests protected by different law articles.Legal interests have been divided into main legal interest,secondary legal interests and random legal interests.The main legal interests determine the nature and attribution in specific provisions of the law articles.The secondary legal interests have a decisive effect on the conviction and measurement of punishment.Unlike the main and secondary legal interests,the random legal interests are not essential conditions for the establishment of crimes,and there are based on incidental events,and protected by criminal law once there are born.As compound legal interests,the main legal interests,secondary legal interests and random legal interests can be infringed by the same crime.Under the premise of recognizing the compound legal interests,the status of the overlap of criminal law articles relationship between the articles is not fixed,and the special law articles have the attribute of “relative”.Based on this,this paper tries to amend “the theory of absolute priority of special law articles” and argues that the special law article of traditional sense should be restricted by the legal interests' standards,then puts forward that the determination of special law articles can adopt the “dual” standards.On the basis of the identity of legal interests,the included law articles should be regarded as special law articles according to the formal standard between law articles.When the application of the special law articles determined by the formal standard may cause the sentencing to be excessively light,the formal standard shall be abandoned,and then the special law articles shall be re-established through the standard of legal interests--the “heavy law articles” in the “the theory of supplementary application of heavy law articles” shall be recognized as the “special law articles” applied preferentially,so as to avoid the suspicion of “violating the original intention of legislation”,“the measurement of punishment countervail the conviction” in the “the theory of supplementary application of heavy law articles” and solve the “imbalance between crime and punishment” that can be produced by the “the theory of absolute priority of special law articles”. |
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