| The question of the rule of competing application of special relationship types of law has always been the core issue of the theory of competing legal provisions,in which the absolute priority of lex specialis should be upheld,whether common law provisions can be applied in special circumstances,or other methods should be adopted is still being debated,and differences in views and positions will have a huge difference in the outcome of the treatment.The problem of inadequacy of lex specialis is the root cause of divergence in the competing rules for the application of lex specialis.In previous studies,on the one hand,there have been few systematic studies on this issue,and on the other hand,the existing academic views have not reached a consensus on this issue,and each has its own opinions and disputes.In judicial practice,this issue is intentionally or unintentionally ignored,or unreasonable views are adopted to produce problems such as unbalanced punishment and punishment loopholes.In view of this,this paper first systematically sorts out the types of incomplete special laws and their corresponding laws,and then conducts a systematic study on this issue on the basis of previous research and judicial status,and proposes corresponding handling rules.In addition to the introduction,the content of this article is divided into the following three parts:The first part is the judicial status and doctrinal debate over the inadequacy of special laws.Firstly,the concept of incompleteness of special laws is explained,and it is pointed out that there are mainly six types of problems in which special laws are incomplete,namely,incomplete types of special law acts,abnormally light main punishments under special laws,incomplete additional penalties for special laws,incomplete conditions for upgrading statutory sentences under special laws,incomplete conditions for lenient punishment under special laws,and incompleteness caused by judicial interpretations of special laws.Secondly,in the current situation of justice,the problems of incongruity and unreasonable judicial decisions caused by these six types are displayed.Finally,the previous research views are displayed and various theories are evaluated,including the theory of the priority application of special laws,the application of common law provisions,the theory of unlawful inclusion,the theory of great competition and cooperation,and the theory of mutual exclusion.The second part is to make an argument and analysis of the incompleteness of the basic situation of the special law,and propose corresponding handling rules.For the three types of incomplete types of special law acts as heavy laws,non-closed privilege clauses in the incomplete types of special law acts as light laws,and aggravated statutory penalties in the main punishment of special laws,on the basis of compliance with formal logic and reasonableness of substantive conclusions,the application of common law provisions can fill the loophole.As a closed privilege clause in the incomplete type of acts of the special law of the lesser law,the common law clause cannot be applied because of the reduced substantive illegality,and should be acquitted.The issue of the basic statutory penalty in the main penalty of the special law cannot simply be applied to the common law article,but should be dealt with on a case-by-case basis.For the situation where the crime of causing a traffic accident results in the death of a person,only if the perpetrator meets one of the three circumstances of excessive defense,excessive risk avoidance,and coercion of accessory can he be convicted and sentenced on the basic charges of the crime of traffic accident;In addition,traffic accidents resulting in the death of a person are convicted and sentenced according to the basic counts of the crime of manslaughter.Although the application of additional penalties under the common law is reasonable in terms of results,due to the lack of legal basis,the principle of legality of crimes can only be adhered to,and the additional punishment of ordinary law provisions cannot be allowed.The third part is to analyze the incompleteness of special circumstances of special laws and propose corresponding handling rules.The incompleteness of special laws mainly includes three types: incomplete conditions for upgrading statutory sentences under special laws,inadequate conditions for lenient punishment under special laws,and inadequate standards for criminalization caused by judicial interpretations of special laws,among which the incomplete conditions for upgrading statutory penalties under special laws can be divided into abstract conditions for upgrading statutory sentences in special laws,and incomplete constituent elements for aggravating special laws.For the above types of problems,they can basically be solved by common law provisions.In the category of inadequacy of criminalization standards caused by judicial interpretations of special laws,if the amount of crime does not meet the criminalization standards for the crime of fund-raising fraud,if the common law fraud crime is allowed to be treated,the crime may lead to incongruity in the punishment,but after careful analysis of the sentencing standards of each province,this incongruity problem is not obvious,and the sentencing threshold for the crime of fund-raising fraud can be raised in judicial discretion to make up for this problem. |
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