| Replacing the examination crime as the new accusation has the social heat and the discussion value.The disputes range from the necessity of substitution to how to define the legal interests of substitution,how to define the scope of national examination and how to determine the nature of substitution.In the process of judicial practice,the crime of substituting examination with vague legal stipulation also encounters the dilemma of improper application.In the face of theoretical disputes and practical needs of the double-sided attack,the academic community from the theoretical point of view or case analysis to find a cure.But a little carelessness can easily lead to the risk of cutting feet to fit shoes.At present,there is a lack of empirical research on large sample data reflecting the whole picture of judicial practice.Only through a small amount of case analysis or theoretical analysis can we solve the problems of conviction and sentencing in lieu of examination crime,can we obtain only a momentary clamor of views and can not obtain long-term academic accumulation.Therefore,this paper takes 904 judgments of the crime of replacing examinations from2015 to 2021 as samples and uses descriptive statistical analysis method to conduct empirical research on conviction.This research method can classify the judicial determination of core disputes and observe the frequency and proportion,so as to facilitate the fit analysis combined with the theoretical part.The fit analysis method can summarize which theory has the most fit in the judicial practice,so as to improve the rules of conviction.In the part of sentencing,the factors that may affect the sentencing of substituting examination crime are brought into the mathematical model by means of multiple linear regression analysis and binary Logistic regression analysis in SPSS software.This paper is divided into four chapters.The first chapter is the core controversy and research methods of conviction and sentencing of crime in lieu of examination.The core controversies on conviction include: First,the infringement of legal interests is not clear.At present,there are many theories in the academic field,such as the theory of social public order,the management of the examination organization by the state,the legitimate rights and interests of other examinees participating in the examination and the theory of complex object.Second,the national examination has no scope.Although the judicial interpretation clearly states that the object of this crime is the national examination prescribed by law,the connotation and extension of legal provisions and national examination are drifting and vague.Third,it is difficult to determine the nature of the act.There are many disputes on how to determine the acts of taking examinations in lieu of others,allowing others to take examinations in lieu of themselves,introducing others to take examinations,organizing others to take examinations in lieu of others,and not reporting by invigilators,the distinction between the crime of taking examinations in lieu of others and the crime of organizing examination cheating,and the relationship between the crime of taking examinations in lieu and the crime of forging identity certificates.The core dispute of sentencing is the blank of theoretical research.I don’t know if there is any non-standard problem in judicial practice or lack of implementing rules of sentencing.The total sample size of the empirical study was 904,including descriptive statistical analysis,theoretical and practical fit analysis,linear regression and Logistic regression analysis.The second chapter is the empirical investigation of the core controversy of replacing examination crime.In view of the three controversies in the field of conviction theory,this paper uses descriptive statistical analysis method to make an empirical study.In the national examination part,divides into the legal stipulation,the national examination two parts.Observe the types of the national examination,the basis for setting up the national examination,the methods prescribed by laws,the subjects responsible for organizing and implementing the national examination,the frequency and proportion of the examination regions.In judicial practice,there are problems of directly identifying the case-related examination as the national examination prescribed by laws without stating the legal basis of the national examination.Through the analysis of the degree of fit between theory and practice,it is found that the law stipulates that the national examination is equivalent to the national examination.In the part of substitute behavior,there are two obvious problems in the judicial cognizance,one is the inconsistency between the statement of judgment and the practice,the other is the wrong statement.Through the analysis of the agreement degree between theory and practice,it is found that the standard of substituting behavior is confused and there is no unified standard.At the same time,it is found that the cases of judicial cognizance instead of examination have the characteristics of "industrialization","popularization" and "simplification".The bad tendency in judicial cognizance includes the ambiguity of legal interests,the excessively wide examination scope and the confusion of behavior cognizance standard.The third chapter is the regression analysis of sentencing in lieu of examination.According to the guiding opinions of sentencing,the Criminal Law and the Criminal Procedure Law and theoretical speculation,setting up independent variables may affect the sentencing instead of examination.The first category is the basic criminal facts,including the type of examination,the importance of the examination,whether the students are in school,candidates and candidates relations.The second is the factual factors related to the direct damage of crime,including subjective viciousness,the use of cheating devices,and the use of false identity documents.The third is the special sentencing factors,namely attempted crime.The fourth category is other factors that may affect sentencing,including voluntary payment of fines,voluntary surrender,confession,meritorious service,repentance,guilty and punishment acceptance,surrender of ill-gotten gains,return of ill-gotten gains,compensation,criminal record,administrative punishment,first offense and occasional offense.By analyzing the factors affecting the sentencing of candidates and candidates,we found that the factors affecting the sentencing of candidates and candidates jointly included voluntary payment of fines,repentance,guilty plea,criminal attempt,friendship between candidates and candidates,professional and technical qualification examinations and occasional offenses.At the same time,there are some problems such as the fault of punishment results and the confusion of sentencing standards.The fourth chapter is the improvement and suggestion of the rules of conviction and sentencing in lieu of examination.On the one hand,the improvement of the conviction rules for the crime of examination substitution is still based on three controversies.First,the complex object theory is adopted to infringe upon the legal interests,namely,the state pays equal attention to the management order of the examination organization and the legitimate rights and interests of other examinees participating in the examination,so as to realize the collective legal interests and individual legal interests;second,the law stipulates that the national examination is a narrow one,and the national examination is national in a relatively clear way;third,the comprehensive judgment of the act of examination substitution is a special form of statutory act of examination substitution,that is,the act of not preventing others from taking the examination on behalf of others knowingly or replacing each other’s examination is a special form of act of examination substitution,that is,the upper limit of introducing others to take the examination on behalf of a few or a specific person is two persons,and that the act of forging certificates is not involved in the act of examination substitution.The judgment logic of conviction rule follows "from objective to subjective",and objectively follows the sequence of legal interest— behavior object — harm behavior.Subjectively judge whether the actor has intention.On the other hand,it is suggested to construct the reference standard of benchmark penalty according to the results of empirical research,expand the applicable space of public surveillance,and pay attention to the common factors such as active payment of fines.Finally,the issue of replacing the examination of criminals to start thinking.The empirical results show that there is a tendency of excessive criminalization in the judicial practice,which is manifested as arbitrary conviction,namely,unclear legal interests,excessive broad recognition of national examination,and confused behavior standards;sentencing "and diluted mud",replacing the lack of factors of crime volume for examination crimes,there is no room for conviction,exemption from punishment for conviction and the existence of a small amount of fine punishment,thus bringing about the attendant effects such as lowering the individual social evaluation of offenders.Only by perfecting the rules of replacing examination crime,can we fundamentally reverse the current situation of excessive criminalization of justice and connect justice with legislation. |
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