1, a criminal act committed by a continuous perpetrator for many times.
Each kind of behavior can constitute a crime separately. If the perpetrator consciously uses several actions to complete the crime, and several actions only constitute one act, it is not a continuous offence, but a permitted offence. For example, someone intended to poison someone, deliberately gave someone three drugs, and as a result, someone was killed. When poisoning someone three times, only one murder was established, which is Xu Xing's crime.
2. A serial offender should not have only a few criminal acts.
In addition, there must be continuity between several criminal acts. As for whether there is continuity between several criminal acts, subjective criminal intent and objective criminal acts should be taken as the inspection criteria. If the perpetrator commits criminal acts of the same nature for a single criminal purpose within a certain period of time, these acts have continuity, otherwise there will be no continuity.
3. Several criminal acts of serial criminals
Is based on the same or common criminal intent. The so-called accomplice is intentional indexation, and all crimes are in the criminal's predetermined plan. The so-called broad sense of criminal intent means that although there is no specific criminal plan, there are general criminal intent and general criminal intent. Otherwise, although more than two criminal acts have been committed objectively, they cannot be identified as serial offenders because of the intentional differences in crimes.
4. A serial offender who commits several crimes must commit the same crime.
If you commit different crimes instead of the same crime, you are not a serial offender. So, what is the same crime? Pay attention to the following points on this issue:
First, in the provisions of a single crime, violating the same provision is the same crime.
Second, in the provisions of selective crimes, such as the crime of forging, altering, stealing, robbing and destroying official documents, certificates and seals as stipulated in the criminal law.
This article includes several possible criminal acts, which belong to the criminal constitution with several selective acts and selective objects. In this case, if a person has committed several different forms or different criminal objects in succession, he can be established as a serial offender. For example, for the same criminal purpose, if A forges official documents first and then alters them, it can be regarded as several acts violating the same crime, which is a serial offender.
Extended data
Practical countermeasures
In view of the above practice, it is obviously not feasible to completely abandon it across the board, but it is a realistic choice to properly guide it to form our own super-legal system of serial offenders. In order to reverse the random spread of the above-mentioned operational inertia and overcome the resulting disadvantages in practice, the author believes that the following countermeasures should be taken from the concept and specific system:
First of all, in the judicial concept, every judicial officer should correctly understand the relationship between combined punishment for several crimes and combined punishment for one crime (including serial crimes). Theoretically, the so-called one crime is actually several crimes, both in terms of criminal understanding and criminal evaluation, but only in terms of criminal punishment.
Therefore, "according to the criminal law, combined punishment for several crimes is the principle of punishing crimes, and combined punishment for several crimes is an exception." As long as judicial personnel adhere to the judicial concept of "combining punishment for several crimes as the principle and combining punishment for several crimes as the exception" and the principle of adapting to new crimes and punishments, they will fundamentally prepare the necessary ideological conditions for reversing the above operational inertia.
Secondly, judicial trial is an institutionalized professional behavior. In addition to good judicial ideas, we need to do enough articles on specific systems. On how to deal with several similar acts, we should follow Germany and Japan's example, that is, through criminal law theory and judicial practice, we should carefully formulate the system of serial offenders beyond the provisions, that is, the concept of "one crime and one punishment" in China's criminal law theory.
That is to say, in addition to the 10 types of crimes stipulated in the criminal law, if it is necessary to apply the serial offender system, we should seriously identify the continuous relationship under the premise of strict restrictions, treat it as one crime, and formulate a super-statutory serial offender system that adapts to China's judicial practice. These restrictions mainly include the following aspects:
1, subjective condition restriction
On the subjective elements of continuous crime, there has always been the opposition between overall intention and continuous intention. "The so-called' overall intention' means that the perpetrator has a subjective understanding of every criminal act in the overall continuous crime before the first act of the continuous crime occurs, and is determined to achieve several follow-up acts that violate the same crime", while continuous intention means that "the same next act will only occur after the criminal act occurs."
The key difference between the two is whether it is determined from the beginning. As a whole, the actor is intentionally asked to know the subsequent same behavior before implementing the continuous behavior, and his understanding of the continuous behavior is determined from the beginning. However, the continuous intentional requirement will not produce the meaning of the subsequent same behavior until one behavior is implemented, and the criminal meaning of its continuous behavior is uncertain from the beginning.
In order to limit the scope of application of serial offense, the theory and practice in Germany and Japan generally advocate that the whole intention is the subjective condition for the establishment of serial offense relationship. However, China's criminal law theory generally requires "the same or generalized intention" in the subjective elements of continuous crime, and it is not clear whether this subjective condition refers to overall intention or continuous intention.
In order to develop the super-legal system of serial offenders that adapts to China's judicial practice, the author advocates abandoning the vague expression of "identical or generalized intention" and adopting the position of "overall intention", and strictly defining serial offenders subjectively.
2. Restrictions on behavior forms.
There is also a contradiction between the theory of the same crime and the theory of the same constitutive requirements on the conditions for the establishment of continuous offense. The former only requires the same nature of the crime, even if theft and embezzlement are property crimes, it is possible to establish a serial offender. The latter requires that only if the basic elements are the same can a serial offender be established.
Regarding the limitation of the establishment scope of serial crime, Takakawa believes that "the so-called' same crime' refers to the constituent elements of the same crime, but in the nature of crime, it should also be limited to basic crime and aggravated crime, ordinary crime and special crime, accomplished and attempted crime, individual crime and * * * crime." In the understanding of "the same crime", we should adopt the theory of "the same constitutive requirements" and strictly limit the scope of application of continuous crime.
3. Restrictions on the types of legal interests.
The legal interests protected by criminal law include national legal interests, social legal interests and personal legal interests, and personal legal interests can be divided into personal exclusive legal interests (such as personal legal interests) and non-exclusive legal interests (such as property legal interests) in nature.
"In Germany, it is generally believed that in addition to limiting the objective conditions, the restrictions applicable to continuing relationships also require that the same legal interests that have been infringed must be strictly distinguished. It roughly divides legal interests into specific legal interests and property legal interests, and at the same time divides the infringement of specific legal interests into the same person or different people.
The combination of acts that infringe on the exclusive legal interests of different people is regarded as excluding the application of continuous relationship. For property legal interests that are not exclusive, there is no restriction on the establishment of continuous relationship. "Some scholars in China also argue that" for crimes with personal exclusive legal interests, especially crimes with lower statutory penalties, the same legal interest theory should be adopted, otherwise it will be difficult to adapt the crime and punishment.
For example, for the continuous intentional injury of three different people, it should be considered as combined punishment for the same crime. The same theory of legal interest should be adopted for crimes that infringe non-exclusive legal interests, such as crimes against property.
Whoever continuously steals or defrauds the property of different victims can be regarded as a serial offender and punished as one crime. "The author also holds the same view to limit the scope of serial crime. In this way, for the serial murders in Qiu Xinghua, we should find several crimes of intentional homicide and impose a combined punishment for several crimes.
4. Limitation of time span
It stands to reason that the so-called serial offense must be consistent in time and space in terms of several identical behaviors. However, in the judicial practice of Japan and Taiwan Province Province, there are also cases where several similar acts that cross menstrual years are also recognized as serial offenders. Some judicial interpretations in China also have this tendency. For example, Article 9 of the Interpretation of the Supreme Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destruction of Land Resources stipulates that "if the acts specified in this Interpretation are not handled for many times within one year, they shall be punished according to the cumulative quantity and amount."
This practice of expanding serial offenders at will is obviously not desirable and should be limited in time span. The author thinks that the term of repeated acts as the carrier of accumulated amount should be one year, and those that exceed one year should not be regarded as a crime, but as substantive crimes and be punished together; As for other types of repetitive behaviors, the time span is more strict. If the time span is too long, even if the overall intention is certain, the author does not advocate identifying it as a serial offender.
In a word, only the continuous behavior that meets the above restrictions can be recognized as the existence of a continuous relationship, and the system of continuous offense beyond the provisions can be applied and treated as "the crime of one crime". Of course, the prerequisite is that several consecutive identical acts must first meet the conditions for the establishment of a continuous offence.
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