On The Reservation And Application Of Implicated Crime

The amendment of Article 229(crime of providing false documents)in The Eleventh Amendment of Criminal Law makes the concept of implicated crime,which has been curled up in the theory of crime number,come into public view again.Among many forms of crime,implicated crime has always been an extremely important and complicated one.The so-called importance refers to the unique nature of the prime number crime to punish the one crime,which can not only deal with the multi-act implicating crime form objectively existing between the common one crime and the common number crime,but also reflect the subjectivism of criminal law,which is in line with the current criminal law concept that pays more and more attention to people.The so-called complexity refers to the lack of systematic research on the essential attributes,implicated relations and punishment principles of implicated offenders,which makes it difficult to form a unified understanding and play a guiding role in criminal legislation and criminal justice.Based on the complexity of the theory and the legislative trend of eliminating the concept of implicated crime,some scholars advocated abolishing the concept of implicated crime to avoid the trivialization of the theory of crime number.However,implicated crime is an objective form of crime number,and more and more punishment of implicated crime also reflects that the concept of implicated crime is deeply rooted in the judicial practice,which can not be abandoned because of the complexity of the theory itself,nor should foreign legislation as the "criterion".On the contrary,due to the huge realistic value of implicated crime and complex theoretical research,further research should be carried out on the controversial issues existing in implicated crime.There are theoretical controversies about the existence or nullification of the implicated crime.The key lies in whether the essential attribute and legal basis of the substantial several crimes of the implicated crime can be found.From the perspective of subjectivism of criminal law,the concept of implicated crime considers the minor subjective malignancy of the perpetrator and makes a "lighter" judgment.From the Angle of prohibiting repeated evaluation,the legislator has already carried out the evaluation of punishment in the drafting of implicated relationship law,and it is reasonable to punish one crime.Therefore,the retention of implicated offense has its legal basis.In addition,the extraterritorial legislation is not the decisive factor of establishing implicated offense in China,but should be based on the reality of our country to make a comprehensive judgment.The judgment of the scope of implicated crime is essentially the judgment of implicated relation,and the judgment standard of implicated relation generally believes that whether there is a consistent intention subjectively and whether there is a close implicated relation between acts objectively.However,the essential attribute of the implicated crime to punish the perpetrator deviates from the simple justice view of the public,so the concept of implicated crime should be strictly applied.Considering this point,it is reasonable to use the criterion of whether the legislator makes up the law to judge the existence of implicated relationship.At present,the legislator chooses the principle of "severing from the first point" as the main punishment for implicated offender.However,considering the legal basis of implicated crime,the principle of adaptation to crime and punishment and the convenience of judicial practice,it is more suitable for the concept of implicated crime to "aggravate" on the basis of "severing from the same severity",that is,"severing from the same severity".