Study On The The Judicial Application Of The Crime Of Replacing Examination

In today’s society,examination is an important means for the country to select qualified talents and determine the admittance qualification of specific industries,which plays an irreplaceable role in the fair and reasonable allocation of social resources.Corresponding to the importance of examination,with the progress of science and technology and the increasing popularity of the Internet,the events of substitute examination are increasing year by year.The act of substitute examination not only damages the right of other examinees to take the examination fairly,but also causes serious damage to the national examination management order.Therefore,the examination cannot play its role of fair and reasonable selection of talents.It is difficult for the competent department of the examination to achieve good results in the administrative regulation of the act of substitute examination,which has become a social problem to be solved urgently because of its serious social harm.Therefore,the amendment to the criminal law(IX)which came into force on November 1,2015(hereinafter referred to as "criminal IX")formally regulates the acts that seriously damage the fairness of the examination,such as substituting for the examination and organizing cheating in the examination,by means of criminal law.However,in more than three years since the introduction of the ninth punishment,there have been great differences in judicial practice in place of the crime of examination.Starting from the judicial cases,this paper explores the problems existing in the judicial application of the crime of substituting for examination,combs the objective and subjective aspects of the crime in detail,combines the different opinions of the current academic circles on the crime form of substituting for examination and the theory of accomplice,and provides opinions and suggestions for solving the difficult and controversial problems in the application of relevant laws.This paper is divided into five chapters.The first chapter is the introduction,which summarizes the research status of this topic,mainly including the background of the topic and the literature review of related issues at home and abroad.The second chapter is the statistical analysis of 122 cases of Chinese judicial documents online.According to the contents of the judgment documents and the main problems of the research,this paper analyzes the above cases from three aspects: the types of examinations for the examinees,the identity of the actors and other cheating crimes involved,the relationship between the time when the crimes are terminated and the criminal forms,and then reveals the disputes in the judicial practice of the crime of replacing the examinations according to the statistics of the data Points and problems in judicial application.The third chapter is the analysis of the subject and subjective aspects of the crime of replacing examination.The crime of substituting for examination is only composed of natural persons,and the unit cannot be the main body of substituting for examination.Different subjects of crime have different subjective maliciousness and social harmfulness,so it is necessary to further divide the natural person subject of this crime: the person who is substituted should also be the subject of this crime;the judicial organ should punish the professional substitute severely.In the place of the crime of examination,the actor can only be intentional.As for whether the perpetrator may have indirect intention,this paper holds an opposing attitude.According to the principle of the unity of subjective and objective,both the substitute and the substituted need to know the substitute behavior,but the scope of the actor’s knowledge does not include the legal attribute of his participation in the examination.The fourth chapter is the analysis of the dispute in the objective aspect of the crime of replacing examination.For the scope of the crime of replacing examination,there has been a lot of controversy in academic circles and judicial practice.In order to solve this problem,in 2019,the "two highs" issued the interpretation of the Supreme People’s court and the Supreme People’s Procuratorate on Several Issues concerning the application of law in handling criminal cases such as cheating in organizing examinations(hereinafter referred to as "2019 judicial interpretation"),but the interpretation still has deficiencies in the mode of combining the enumeration of types of examinations involved in this crime with the provision of supporting the bottom.In addition to the legal behavior mode,it is also a crime of substitutingexamination for others to fill in the information of others on the examination paper by others who are qualified for the examination.When a certain act satisfies both qualitative and quantitative conditions of omission crime,the actor can establish the crime of omission instead of examination.It is not suitable for the judicial organ to directly incriminate the act of offering for examination.The fifth chapter is the analysis of the special criminal form of the crime of replacing examination.The criterion for determining the crime of substituting for examination should be the identity of the examinee who accepts the examination.The criterion for determining the completion of the crime of substituting for examination should adopt the theory of starting examination,that is,when the examinee officially begins to answer the questions,it constitutes the crime of substituting for examination(completion).For the common organization type intermediary behavior and the help type intermediary behavior,to replace the accomplice of the examination crime is punished;for the actor who organizes others to take the place of the examination for many times,it should be regarded as the crime of organizing examination cheating.