Research On Judicial Determination Of Multiple Acts In Criminal Law

Multiple acts generally refer to the provisions in China’s criminal law that the existence of a certain number of acts affects the conviction and sentencing provisions to determine whether the act can be established as a crime or increase the punishment.However,there are few relevant studies,and the theory of multiple acts is not yet mature.Since the first regulation of multiple acts,the regulation of the number of acts involved in legislation and judicial interpretation has expanded greatly,resulting in many problems in judicial practice.In the final analysis,the confusion in judicial application stems from the imperfection of the theory.This paper aims to clarify the concept,system status and legal basis behind multiple acts,deeply study the identification rules of "secondary" in multiple acts,and answer the difficult problems related to the nature and unfinished form of acts in practice.The first chapter of this paper is the first part,which raises questions by combing legislation and judicial precedents.Theoretically,it is controversial whether multiple acts have the value of independent existence,and the status of multiple acts in the criminal constitution system remains to be studied.Whether a single act has been subject to administrative treatment as one of multiple acts is often not distinguished and included in practice.What is the basis behind it? In addition,will the number of counts be affected when there are unfinished forms of preparation,attempt and suspension in a single behavior? The second chapter is the second part,which aims to clarify the theoretical disputes of multiple acts.First of all,it evaluates and analyzes many concepts and classifications of multiple acts in theory,and determines that the object discussed in this paper is multiple acts in a broad sense.The main types are multiple acts as the basic constituent elements,multiple acts as the aggravating constituent elements and multiple acts as the carrier of cumulative amount,which paves the way for the following discussion on the controversial problems of different types of multiple acts.Secondly,it makes a distinction between multiple acts and continuous crimes and the related concepts of the same kind of several crimes.It is considered that continuous crime and multiple acts belong to cross relationship rather than inclusive relationship.From the formal point of view,multiple aggravated acts do have the same number of crimes,but the evaluation rules and sentencing process are completely different,and it is not feasible to apply the same number of crimes in multiple cumulative acts.Therefore,multiple acts have independent value and research significance.Thirdly,respond to the basis of multiple basic acts in the theory.It is more difficult for the academic circles to increase the subjective basis of the theory of illegal punishment and the theory of vicious punishment.Finally,determine the system status of multiple behaviors.The status of "multiple" in the theory of crime constitution determines the unfinished form of multiple acts.In academic circles,there are mainly disputes over the theory of constitutive elements,the theory of sentencing rules and the theory of objective punishment conditions.Based on the disadvantages of the traditional theory of constitutive elements and the theory of objective punishment conditions,this paper believes that it is more appropriate to define it as atypical constitutive elements.The actor can understand a single behavior without understanding the whole of multiple behaviors,which can not only comply with the principle of responsibility,but also be better applicable to practice.In addition,it is the identification standard of the number of acts.The subjective standard theory and objective standard theory are too absolute.The comprehensive theory actually turns the focus of the problem to what factors are taken into account,which becomes more complex.This paper believes that it is more appropriate to delimit the standard of "secondary" from the perspective of the ability of infringement of legal interests.The third chapter is the third part,which tries to solve the problems that may constitute repeated treatment in practice according to the above theory.Whether a single act has been subject to administrative treatment or criminal treatment can be included in the number of times.In practice,most of the acts that have been subject to administrative treatment are included and the acts that have been subject to criminal treatment are excluded.This practice has been questioned by many scholars,which violates the principle of prohibiting repeated evaluation and belongs to repeated treatment.This paper holds that the principle of prohibiting repeated treatment mainly refers to that the same criminal fact of the same object cannot be regarded as both conviction fact and sentencing fact.Although both the public security administration punishment law and the criminal law are public laws,criminal responsibility and administrative responsibility can coexist,which does not violate the principle of prohibiting repeated evaluation.After criminal treatment is not included,administrative treatment can be included,but the legal basis of the three types of multiple acts is different.Conclusions can be deduced from the original legislative intention and punishment basis of multiple basic acts,multiple aggravating acts and multiple cumulative acts.The fourth chapter is the fourth part,which mainly solves the problem of dealing with unfinished forms in multiple behaviors.Is the number of attempts,preparation and suspension in a single behavior counted? This paper holds that in multiple basic acts,taking multiple theft as an example,the theft of property with low value should not be counted into the number of times,that is,the establishment scope of multiple basic acts should be limited,and the nature and minor illegal acts should not be counted into the number of times;The attempted theft,the prepared theft and the theft stopped halfway shall not be counted,and the completed theft must be counted.In multiple aggravated acts,taking multiple robberies as an example,the attempted and suspension of a single robbery should generally be accumulated.Because it has the risk of infringement of legal interests,the suspension exempted from punishment will not be counted.Among the multiple cumulative acts,there are many types of acts.The suspension of illegal acts should not be accumulated,attempts can be accumulated,the suspension and attempts of criminal acts can be accumulated,and the suspension of exemption from punishment should not be accumulated.