Legislative Techniques And Theoretical Proof Of Competing Relationships In Criminal Law

China’s competition theory has been extended from the theory of punishment to the theory of crime and enriched from the theory of several crimes to the theory of competition.At present,the traditional understanding and system of competing theories can no longer adapt to the legislative trend of adding,changing,or abolishing dozens of crimes at any time.The so-called "competing" is itself a process of seeking common ground while reserving differences.The same is manifested in imaginary competition and competition between the law is essentially the elements of the composition of the elements of mutual overlap;differences are reflected in: the degree of overlap between the two differ,the law competition between the composition of the elements of the high degree of overlap,directly through the logical relationship between the law predetermined and judged that is sufficient,the imaginary competition between the composition of the elements of the low degree of overlap,the need to reveal the facts of the specific case is not so related to whether the crime between the composition of the elements of overlap.The overlap between the elements of the imaginary competition is low.Therefore,there are two different approaches to understanding the relationship between imaginative competition and statutory competition: one approach focuses on preserving differences,and the other approach seeks commonality as much as possible.The former scheme has been caught in the "school of thought" for a long time,and its development has almost reached a "bottleneck".The competition is the basis of any theoretical development,and it is the basis of the views held by scholars,but it is far from the whole of the competition theory.The core of the current competition issue is to seek the most reasonable solution to the problem based on a country’s criminal code so that it can guide or serve the judicial practice and solve the difficult cases that may appear in practice at any time without contradiction and omission.To find the best solution to the problem of competition,this paper takes a different approach to the competing relationship,not to ignore the care of the internal relationship between statutory competition and imaginary competition,but mainly to reflect on the academic status quo which is often caught in the big confusion between the criteria for distinguishing statutory competition and imaginary competition,that is,to repeatedly seek to prove the consistency of the criminal law function,the legal effect and the convergence of the internal logic of the two types of competing relationships in terms of legislative law,criminal law theory and the logic of application of typical crimes.The convergence of the two types of competing for criminal law functions,the similarity of legal effects,and internal logic.First,taking the law of legislation as the entry point,this paper finds that the legislative addition of the "otherwise provided" clause in the Amendment to the Criminal Law(Eleventh)tends to be conservative,while the "severity" clause is always in the active period of legislation,and the two types of the competition show a uniform trend in the applicable rules.The tendency is to give priority to both types of competition.At the same time,the distinction between competing types has not yet found a clear legislative basis,and the "upgraded" version of the school of thought is always brewing.Secondly,based on criminal law theory,we can conclude that the application of the principle of "the same" for the imaginary competition is the rightful meaning of the principle of criminal law prohibiting repeated evaluation and comprehensive evaluation.In the same way,for the competition of law,there is no privileged clause with mitigating factors in China,and the "otherwise provided" clause is only a legal mimetic clause outside the competition theory,not the corresponding form of the competition of special relationship law,so the theory of absolute priority of the special law advocated by the general theory is not stable,and the competition of law and imaginary competition is not only difficult to distinguish,but also should not be distinguished.It is not only difficult to distinguish,but also should not be distinguished.Finally,taking the Amendment to the Criminal Law(XI)as the blueprint and using typical crimes for logical examination,this paper further proves that it is difficult to distinguish and should not distinguish between statutory competition and imaginary competition within the framework of China’s criminal law,which is not only the law of legislation at the actual level but also the natural direction of value judgment.