□ Zhao Bingzhi, Wang Xiumei, Du Fu, Gao Mingyu, Professor of Criminal Law, Mr. Gao Minglu, a master of Qingshan Xi Lighting, enjoys a high reputation in the field of law and international law in China. He is a famous contemporary jurist and legal educator in China, and the main founder and pioneer of criminal law in China. By. For half a century, accompanied by the birth and development of the new Chinese criminal law, Mr. Gao has always pursued the dream of the rule of law. His path of study is rough, firm, ordinary and brilliant. The creation, progress, development and prosperity of Chinese criminal law Dedicated to his efforts, condensed his wisdom. Mr. Gao’s scholarship is known for his rigorousness. He has been writing and writing for decades, and has published more than 70 professional writings (including monographs, co-authors, and editors) and more than 200 papers.
His criminal law has laid a solid foundation for the construction and expansion of the discipline of Chinese criminal law, shining the wisdom of wisdom, and is a master of criminal law. As the first doctoral tutor in criminal law in China, at the same time of academic research, Mr. Gao is based on the life essentials of "science is my life, education is my cause", preaching and teaching, awarding post-study, cultivating for China. A large number of outstanding legal talents. In addition, Mr. Gao has served as the head of the Faculty of Law of Renmin University of China, the director of the Faculty of Law School, the member of the Disciplinary Review Group of the State Council Academic Degree Committee, the Convener of the Law School, the Director of the International Criminal Law Institute of Renmin University of China, and the Vice President of the Chinese Law Society. He is the president of the Institute of Criminal Law of the Chinese Law Society, the honorary president, the vice chairman of the International Association of Criminal Law and the chairman of the China Chapter.
I. Jinde’s practice in 1928, Mr. Gao was born in Zhejiang Yuhuan on the coast of the East China Sea. Adolescents were influenced by the father who made the push, and Mr. Gao read many books related to the law. After graduating from high school, he was admitted to Zhejiang University Law School. During the university, the extensive books and hard work made Mr. Gao a leader among his peers and won the appreciation of Mr. Li Haope, the dean of the law school. In 1949, "2003.2 colleges and universities theoretical line liberation, Zhejiang University Law School was suspended, and Mr. Gao transferred to the law department of Peking University to continue his studies. After graduating from the university, he was sent to the law department of Renmin University of China to study for graduate students. In August 1953, After nearly two decades of hard work, Mr. Gao resolutely chose the profession of law teachers as a new starting point for his life.
The choice of academic path means choosing a path of loneliness and poverty. Since then, Mr. Gao has had an indissoluble bond with the cause of Chinese criminal law. Every step of his study has confirmed the development track of Chinese criminal law. As early as 1964, Mr. Gao had combined his experience in studying the 33rd draft of the Criminal Law draft and compiled the "Minutes of the Criminal Law of the People's Republic of China". After the promulgation and implementation of the Criminal Law in 1979, he slammed the manuscript and revised it in time. In 1981, Mr. Gao’s first monograph, "The Birth and Birth of the Criminal Law of the People's Republic of China," was published by the Law Press. The book accurately explains the legislative purposes of the 1979 criminal law provisions, and comprehensively describes the different opinions in the legislative process, showing the difficult course of the first criminal law of New China from grassroots to enactment. This is the first monograph on criminal law published in China after ten years of unrest. It provides important information for the teaching, research and criminal justice practice of criminal law. Its influence has been extended to this day and has become an important research in criminal law. In October 1986, Mr. Gao’s second monograph, “General Principles of the Criminal Law,†was put to the lead. In November 1986, the "Summary of New China's Criminal Law Research" edited by Mr. Gao was published. This is the first comprehensive and comprehensive curriculum of the law in China, and it has been summarized and summarized for the review of other legal disciplines. model. In 1988, the "Theory and Practice of the Criminal Law of New China" edited by Mr. Gao and Professor Wang Zuofu met with the readers. This monograph systematically and deeply explored many important topics in the theory of crime, punishment and crime. It has created a precedent for the special research and demonstration of criminal law. In 1989, Mr. Gao and Professor Mark Chang jointly edited the textbook "Chinese Criminal Law" of the colleges and universities. This textbook is very pioneering and far-reaching. In 1992, it won the second prize of the Excellent Excellent Textbook of Chinese Ordinary Higher Education. In 1993, Mr. Gao edited the "A Brief History of New Chinese Criminal Law Science", which filled a gap in the study of the development history of criminal law in New China. In June 1994, Mr. Gao’s third monograph, Research on Criminal Law Issues, was published. This book brings together his long-term experience and research on criminal law research. It is of great significance to the construction of criminal law, criminal legislation and criminal justice practice in China. Guidance and promotion. In October 1994, the three volumes of the legal masterpiece "The Principles of Criminal Law" edited by Mr. Gao were published. This is a result of the key projects of the National Philosophy and Social Science Planning. After more than ten years of research, it has been set up since the founding of New China. The essence of the basic theory of criminal law research, especially the comprehensive, systematic, in-depth and creative research summary of criminal legislation, justice and theory since the reform and opening up, profoundly explored the basic principles, systems, principles and development of criminal law. The rules and new experiences. In 1995, the book won the first prize of “The First Outstanding Achievement Award of the National Higher Education Institutions for Humanities and Social Sciences†with its high-grade academic level and outstanding practical value. In 1996, it won the second prize of the National Book Award and the Second National Book Award. In 1998, Mr. Gao and Professor Zhao Bingzhi co-edited the "New China Criminal Law Legislation Overview" (upper, middle and lower volumes - published, this is one of the most systematic, detailed and complete works on criminal legislation in China, including Since the founding of the People's Republic of China in 1949, various criminal legislation documents, previous criminal law drafts, single criminal law and subsidiary criminal law have demonstrated the historical development track of criminal legislation in New China and are an indispensable tool for studying criminal law legislation in China. The editor-in-chief of the National Social Science “Ninth Five-Year Plan†key project “New Economic Crime Research†was published. This monograph comprehensively, systematically, deeply and meticulously studied the judicial application and legislative improvement of certain economic crimes. A masterpiece of research on economic crime.
Second, the heart of the legislation, suggestions, advice, criminal legislation is one of the basic projects of legal system construction, the formulation and improvement of the criminal code is the basis of a country's criminal legal system. Every legal researcher has a responsibility to contribute to the country's rule of law. Since the youth of Fenghua Zhengmao, Mr. Gao has participated in the national criminal legislation creation activities for nearly half a century, and has contributed a lot to the criminal legislation work in China, and gradually formed a complete set of construction theories about the formulation and revision of the criminal code.
(I) Basis on criminal legislation Before the passage of the Criminal Code, although the majority of criminal law practitioners and theoretical workers demanded a comprehensive revision of the criminal law and the formulation of a new criminal code, some scholars advocated continuing to adopt a single line. The criminal law and the subsidiary criminal law supplement and modify the criminal code, and it is not appropriate to "great reform." In this regard, Mr. Gao is far-sighted and believes that the time for comprehensive revision of the criminal law is mature. It is not only necessary to comprehensively amend the criminal law, but also feasible. There are many favorable conditions: (1) The Standing Committee of the National People's Congress has included the revision of the criminal law. The work plan and preparation work have laid a good foundation for the comprehensive revision of the criminal law. (2) The criminal law and the subsidiary criminal law supplemented by the criminal law and its amendments have been repeatedly tested in different periods and different degrees of judicial practice, which are legislative defects and Insufficient and crux problems have been fully demonstrated. In addition, the ''two highs' have made a lot of investigations and studies on the comprehensive revision of the criminal law. They also made many judicial interpretations on practical problems, which provided for the revision of the criminal law. Rich experience. (3) Criminal law experts and scholars in the Department of Political Court and Law Research Institute have conducted serious research on the revision of the Criminal Law for many years and published the theoretical front line of 203.2 colleges and universities!
And published a lot of research results. (In the fifteen years of criminal legislation, the provisions of criminal law can not be in conflict with the Constitution, but must implement the basic principles and basic spirit of the Constitution; must proceed from reality, based on the national conditions, people's feelings and sins of the country, pay attention to Summarize and reflect the successful experience of China in combating crimes, prevent possible loopholes and mistakes; criminal legislation should reflect the basic criminal policy of combining punishment with lenient in China, and use this policy to guide and coordinate the legislative content; criminal legislation should pay attention to Science, political theory, economic theory, legal theory. ("The valuable experience of criminal legislation work, learning Peng Yuwen's election" Mr. Gao believes that in the criminal legislation work, we must adhere to four principles: First, the concentration of legislative authority The principle of sex, that is, the legislative power of criminal law must be exercised by the National People's Congress and its Standing Committee. Local people's congresses at all levels and their standing committees, administrative organs at all levels, and judicial organs have no power to enact and promulgate criminal laws. Of course, for the nation According to the provisions of the Constitution and the Criminal Law, the autonomous areas are based on the actual conditions of the local ethnic groups. The modifications or supplements to the crime and penalties should be allowed, but must be submitted to the National People's Congress Standing Committee for approval before they can be implemented. Second, the principle of consistency of legislative thinking. That is, whether it is the criminal code or the single criminal law It is necessary to maintain the inherent unity of legislative thinking. It is necessary to pay attention to the consistency of legislative purposes, but also to pay attention to the consistency of basic principles, but also to pay attention to the consistency between different laws and regulations. Emphasis on the consistency of legislative ideas is to reduce legislative contradictions. To ensure the overall effectiveness of criminal legislation. The third is the principle of the necessity of legislative content. That is, the content of criminal legislation must be mature and indispensable. If it is not required, it must be resolutely abandoned; The advanced nature of the advancement can not be missed. The fourth is the principle of diversity of legislative methods. That is to say, criminal legislation can be varied in form, including criminal code, single-line criminal law, and subsidiary criminal law in non-criminal law. (Gao Mingxi, Jiang Wei*, "Preliminary Study on the Legislative Principles of Special Laws of Criminal Law", containing "Legal Studies on Criminal Legislation" The technical criminal legislation is a profound study. It is not enough to have policy guidance and theoretical integration. In the formulation and revision of criminal law, legislative technology is very important. Based on years of legislative experience, Mr. Gao believes that in legislative technology On the aspect, we must pay attention to the following four questions: First, the formulation should be clear. That is, the written expression of the legislative content must be unmistakable, not vague, ambiguous, confusing and ambiguous. Second, the term should be unified. The term should be legal and criminal, so that the concept is clear, the meaning is clear, the standard is standardized, and it is concise and easy to understand. It is necessary to avoid political slogans, proverbs and other non-legal languages ​​in the criminal legislation. The third is to distinguish the boundaries. Make a clear distinction between sin and non-crime, this crime and the crime of sin, coordinate the relationship between the internal provisions of criminal law, pay attention to the matching and connection between criminal law and administrative, economic and civil laws. Fourth, the content should be feasible. Facilitating the civic law and the law enforcement of the judiciary, can not make people have no way to deal with the law. If there is law is not easy to use (Ibid.) In the process of comprehensively reforming the Criminal Code, he further pointed out that the 1979 Criminal Code adopted the "legitimate and should not be fine" and "Ning Shudu" because of the historical conditions and legislative experience at that time. "tight" approach. In the comprehensive revision of the Criminal Code, lessons should be learned from it, and there should be a major improvement in legislative technology. Specifically, the Criminal Code should be scientific in nature, both in terms of the structure of the articles and the expressions of the articles. It should be as simple, specific, and rigorous as possible, and practical for practical use. First, a title should be established before each article. The content of the article is generally stated; the title of the sub-category is also the crime. Second, in principle, the sub-rules should adopt a stipulated method of sin, which is convenient for distinguishing the boundary between a sin and a number of sins, and helps to determine the sin and sentence. Third, in the expression of crimes, the method of simple crimes should be used as little as possible, and the way of narrating crimes should be used. The description of crime characteristics should not be general or vague, and strive to be clear and specific. Fourth, we must pay attention to the balance between various statutory penalties.
Serious crimes and misdemeanours are significantly different in statutory punishment; crimes with similar harmfulness should also be roughly similar in statutory punishment. For criminal provisions with a statutory co-opetition relationship, the penalty for special law should be heavier than ordinary law, and at least not lower than ordinary law. ("Review and Prospect of Criminal Legislation in China in the Past Fifteen Years") (IV) Directions for the Amendment and Improvement of Criminal Legislation The revision of criminal law is a serious task. It cannot be carried out rashly, and a lot of investigations must be done, especially in In the guiding ideology of the revision of the criminal law, Mr. Gao believes that four aspects must be emphasized: First, it is necessary to adapt to the need to establish a new socialist commodity economic order, protect the legitimate development of various forms of ownership, and punish criminal activities that destroy various economic components. Second, we must keep up with the pace of building socialist democratic politics and use criminal law to eradicate various malpractices and corruptions in our country's political life, and make our political system and political life more democratic and scientific. The third is to sum up the rich experience since the implementation of the criminal law and to absorb it into the criminal code. Fourth, we must pay attention to the general trend of criminal law reform in various countries in the world, and draw on and absorb the successful examples of foreign criminal legislation and the useful experience of criminal justice. ("Slightly on the Guiding Ideology of Criminal Law Amendment", which contains the direction of the "Legal" 2003.2 theoretical front on the improvement of criminal legislation. Mr. Gao believes that there are four main aspects: First, in the fight against the criminal law, it should focus on punishing the serious economy. Crimes and crimes that seriously endanger public security. Second, on the basis of conviction and sentencing, it should be changed from behavioral social harmful centralism to behavioral social harm and taking into account the personal danger of criminals. Third, in the penalty system, It should be changed from a stricter and more closed penalty to a moderately and openly penalized sentence. Fourth, in the scope of application of crimes, it should focus on domestic crimes, and also on international crimes and transnational and cross-regional crimes. (Gao Mingxi, Zhao Bingzhi, Wang Yong! "An important issue in the improvement of the criminal code system structure is an important issue in the criminal code is to pay attention to the reasonable arrangement of the system structure. Mr. Gao believes that in the general provisions of the criminal law, the 1979 penal code general It is divided into five chapters and can be adjusted into six chapters: the first chapter is "the basis and principle of criminal law", which mainly clarifies the basis for the formulation of criminal law.
This chapter should stipulate universal jurisdiction and how it applies to Hong Kong, Macao and Taiwan compatriots in the Mainland (Mainland). The third chapter "crimes and criminal responsibility" includes criminal acts; age of criminal responsibility; criminal responsibility; intentionality and negligence of crime; form of criminal cessation; joint crime; unit crime. The fourth chapter is "legitimate behavior." The fifth chapter is "penalty." The sixth chapter is "Criminal Law Terms."
The system structure of the Criminal Code should be improved. Mr. Gao believes that: (1) The “counterrevolutionary crime†in the original criminal law should be renamed as “crimes against national securityâ€. (2) The chapter on the crime of undermining the socialist economic order can be divided into several chapters, such as crimes against modern enterprise management, crimes against fair competition, financial crimes, tax nuisances, and so on. (3) The chapter on the violation of personal rights and democratic rights is originally two similar objects. It should be divided into two chapters: the crime of infringing on the personal rights of citizens and the crime of infringing citizens' democratic rights. (4) At the same time as the chapter on the crime of infringement of property, a special chapter on the crime of infringement of intellectual property rights may be added. (5) The chapter on the crime of obstructing social management order can also be divided into several chapters, such as the crime of obstruction of the judiciary, the crime of nuisance of the state (side), and so on. (() In order to strengthen the building of a clean government and oppose corruption, it is necessary to classify the crime of corruption and bribery as a chapter. (7) The crime of violation of duties by military personnel should be included in the Criminal Code in order to maintain the integrity of the criminal code system. "On the line", in the "Law" (Shenzhen) 1994 trial report No. 2; "Review and Prospect of Criminal Legislation in China in the Past Fifteen Years", containing the "Explanation of the Penalty for the Penalty of the Law" Mr. Gao believes that in the comprehensive revision of the Criminal Code In the case of the statutory penalty for criminal detention, it is generally possible to consider adding a single penalty as an alternative punishment. Regarding the amount of fines, Mr. Gao believes that the combination of general rules and sub-rules should be adopted. Means: The general rule stipulates the lower limit and the sub-rule stipulates the upper limit; the amount of the fine is reflected in the crime, and there should be a big difference between economic crimes and non-economic crimes; reflected in the criminal liability subject, there should also be some crimes against unit crimes and natural persons. Different. (Gao Mingwei, Zhao Bingzhi, Wang Yong: "On the Improvement of Criminal Legislation in China") Mr. Gao's specific ideas on perfecting the criminal law, except for the above main parties In addition to the problems, there are other aspects, such as: (1) On the abolition of the crime, it is recommended to change the crime of collective production to the crime of destroying production; to cancel the crime of "smashing and looting" and the crime of stealing precious cultural relics. 2) On the increase of crimes, it is recommended to increase the crime of hijacking of vehicles, the crime of embezzlement, the crime of robbing guns and ammunition, the crime of destroying mineral resources, etc. (Gao Mingxi, Mo Kaiqin: "On the Crime of Copyright Infringement", containing "Legal and Social Development" 》 199 (Reproduction of crimes, crimes of counterfeiting other people's works and plagiarism works. (4) Regarding the decomposition of the three "pocket crimes", it is proposed to cancel the illicit crime of speculation and the guilty of the offence. The content has been sorted out, and it has been included in the crimes of differentiated crimes or the crimes of illegal business operations and crimes against the market. The crimes of rogues have been abolished and broken down into crimes of gathering people, finding troubles, forcing defamation, and gathering crimes of fornication. Adjusting the composition of dereliction of duty, adding offences of abuse of power, overstepping powers, deliberate renunciation of duties, etc., causing negligence Caused by swollen swelling. ("On several issues of criminal law reform in China", featuring the new criminal code. Mr. Gao believes that the criminal code promulgated in 1997 is to rule the country according to law, build a socialist country ruled by law, and maintain social stability. The objective needs of the construction of a socialist market economy. He believes that the Criminal Code has been in existence for 18 years since its establishment in 1979. During this period, criminal offences have presented many new features and forms, and the original criminal law is not comprehensive and perfect. It is imperative to comprehensively amend the criminal law, respond to new forms of crime, and make changes to some systems. (Wang Songmiao: Mr. Gao believes that the new criminal code reflects the "three strictes" in the legislative content and spirit, that is, the strict law network, strict The system is strictly punished. The so-called strict law network means that the new criminal code stipulates quite complete crimes, with a total number of more than 400 kinds, which comprehensively reflects social politics, economy, military, education, science and technology, culture, health, The actual situation of various crimes that occur in all areas of life of marriage and family. The so-called strict system 203.2 theoretical warfare of colleges and universities refers to the new criminal code on the basis of summing up the 17 years of experience in the implementation of the criminal law in 1979, on a series of systems, especially the personal jurisdiction system, the legitimate defense system, the sentencing system (such as discretionary mitigation, recidivism) Probation and execution systems (such as regulation, deprivation of political rights, and commutation, parole, and time-effects have made more stringent regulations. The so-called severe punishment means that the new criminal code firmly resolutes those who seriously endanger national security and seriously endanger public security. And crimes that seriously undermine the economy are listed as severe punishments. (Zhang Dan: Ming Wei: "On the "Three Stricts" of the revised Criminal Law", containing the "Political and Political Forum" III. Some macroscopic issues of the theory, Mr. Gao has repeatedly published his own views: the research object of criminal law is what is the research object of criminal law, and there are many opinions in the academic circles.
Mr. Gao believes that criminal law is the science of studying criminal law and its criminal, criminal liability and punishment. ("A Brief Discussion on the Objects and Methods of Criminal Law Research", published in the "Journal of the Central Political and Legal Management Cadre College", 1992), criminal liability as a research object of criminal law, is a pioneering work in the field of criminal law in China. Mr. Gao believes that crime, punishment and criminal responsibility are three concepts that cannot be replaced. Criminal responsibility is the link between crime and punishment, and should be an indispensable part of the criminal law system.
Research Methods of Criminal Law Criminal law is a profound and profound departmental law. The study of criminal law should adopt various methods and explore from different aspects. Only in this way can the study of criminal law be deeper and richer. Mr. Gao clearly stated that the following four methods should be used in criminal law research: First, the method of analysis. That is to explain and explain the criminal law norms, especially the comprehensive application of qualitative analysis and quantitative analysis methods. Second, the method of comparison. That is to say, from a macro perspective, the criminal law system, the legislative characteristics, the criminal law principles, the criminal law system, the criminal law thought, and the criminal law theory of different legal systems and different countries are compared horizontally; or from a microscopic level, a specific system, specific regulations, specific problems, and specific Perspectives are compared horizontally. The purpose of comparative research is to broaden the research horizon, enhance the understanding of criminal legislation, judicial practice and criminal law theory in various countries, and analyze the right and wrong, review the advantages and disadvantages, sum up experience, learn lessons, and better obtain regular understanding. However, comparative research must obtain a large amount of information as a premise. It is not possible to rely solely on a scale, a half-paw, and a slogan, and to conclude that "2003.2 college theoretical fronts sum up the experience of the predecessors, judge the right and wrong, take the essence, go to its dross, borrow ancient Fourth, the theory and practice method. That is, the criminal law theory should pay great attention to the experience of judicial practice, constantly discover new situations, solve new problems, and guide judicial practice. Only by adhering to the combination of theory and practice can criminal law research be The branches are leafy and evergreen.
(The same as the guiding ideology of criminal law research, criminal law is a very strong class science. Therefore, criminal law research must be guided by Marxism-Leninism Mao Zedong Thought. Through the in-depth study of Marx, Engels, Lenin and Mao Zedong Thought, Mr. Gao believes Their thoughts have universal guiding significance for the study of criminal law: (1) The idea of ​​the people's democratic dictatorship helps to distinguish between the enemy and the friends, distinguishes the importance, determines the attacking edge of the criminal law, and more effectively punishes the crime and protects the people. The idea of ​​the economic foundation and the dialectical relationship of the superstructure helps determine the functions and tasks of the criminal law, and better exerts the role of the criminal law in defending and promoting the construction of the four modernizations. (3) The idea of ​​combining punishment with leniency, Help to treat differently, distinguish between the master and the slave, punish the evil and promote the good.
(4) The idea of ​​investigating and researching, seeking truth from facts, and proceeding from reality can make criminal legislation and criminal law theory practical, with fewer errors or no mistakes. (Editor Gao Mingqi: Criminal Law (Revised, 17+3, Law Press, 1984 (4) The development of criminal law research under the conditions of market economy The establishment of socialist market economic system has triggered profound changes in all legal theories including criminal law in China. Under the conditions of market economy, criminal law How to develop research is a fundamental issue in the study of criminal law. Mr. Gao believes that it should break through the theoretical pattern of the past and surpass the existing academic level to explore new topics under the conditions of market economy.
From the perspective of the criminal law foundation, under the market economic system, with the diversification of economic relations, the breadth of criminal law adjustment has expanded - with the complexity of economic relations, the depth of criminal law adjustment has improved.
Under the conditions of market economy, the adjustment of criminal law is still necessary. Even under the planned economic system, the breadth and depth of its adjustment are even worse.
In terms of conception, the criminal law concept of market economy, as one of the important contents of the cultural value concept of market economy, must intrude through the basic spirit of market economy and cultural values, and be embodied in the unique way of criminal law. The basic content of the criminal view of the market economy is to scientifically establish the criteria for the identification of crimes. The fundamental content of the penalty view of the market economy is the social effect of pursuing punishment. To this end, we must pay attention to the fairness and utilitarianity of punishment. The fundamental content of the criminal law view of the market economy is to pay attention to the unification of the social protection function of the criminal law and the guarantee function of human rights. Therefore, the criminal law should strictly enforce the principle of legality of the crime.
In the criminal control mode, the basic concept of the relativeity of crime and the economics of punishment should be taken. It is necessary to break the concept of punishment and punishment of severe punishment, establish an optimal allocation of punishment resources and achieve the best effect of curbing crime. Criminal control model.
In criminal policy, we should reflect on the practice of focusing on the fast, and consider the appropriate adjustment of criminal policy.
Scientific reforms should be carried out in the criminal law mechanism. First, consider introducing a jurisprudence system to solve the problem of disconnection between criminal legislation and criminal justice.
Secondly, when the conditions are ripe, the mathematical criminal law and the computerized criminal law should be introduced to coordinate the relationship between conviction and sentencing. Finally, the execution penalty mechanism should be reformed to coordinate the relationship between sentencing and execution. ("Research on Criminal Law Issues", pp., Law Press, 1994) IV. Exploring theories and experiencing Mr. Poor Yuan Gao said that criminal law scholars should think independently, adhere to academic discussion, and have a high degree of scientific belief. There is no 'forbidden zone' in academics. You should be brave in exploring, dare to innovate, uphold the truth, and correct mistakes. * ("The Criminal Law Study of the Past Ten Years", in Legal Learning and Research, No. 3, 1989) As a scientific worker, he never stopped climbing to the peak of science; as an honest jurist, He never drifted with the tide.
For decades, he pursued the truth, explored the true knowledge, formed his own independent academic ideology, and published many insights, which is the true portrayal of his dedication to the spirit of scientific exploration.
Basic Principles of Criminal Law What are the basic principles of criminal law? What criteria should be adopted to determine the basic principles of criminal law? What are the basic principles that should be adopted in China's criminal law? These problems are not well solved by the criminal law scholars in China before the 1980s. After the promulgation and implementation of the Criminal Law in 1979, since the Criminal Code itself did not expressly stipulate the basic principles, it also caused controversy in the academic circles. In 1982, in the third chapter of Criminal Law, edited by his editor and division of labor, Mr. Gao clearly stated for the first time that the basic principles of criminal law must be specific to criminal law and run through the principles of criminal law. These principles include: the principle of a legally prescribed punishment for a crime, the principle of adapting to crimes and punishments, the principle of arrogance, the principle of opposing alliances, and the principle of combining punishment with education. Since then, these claims have been accepted by most criminal law books and are in a general status. The principle of the legality of a crime, the principle of adapting to the crime and the principle of equality of everyone in the criminal law, was established by the criminal law revised in 1997 as the three basic principles of criminal law in China.
China’s 1979 Criminal Code does not provide for the principle of a legally prescribed punishment for a crime. Regarding whether this principle should be established in the new criminal code, whether the Chinese criminal law should adhere to the principle of legality of the crime, there are different opinions in the criminal law academic circles. Mr. Gao believes that in the comprehensive revision of the criminal law, it is necessary to clearly stipulate the principle of criminal law and abolish the analogy system in the criminal law. The new criminal code shall stipulate the following or similar article: for acts that are not expressly stipulated as crimes in the conduct of the act, they shall not be convicted and punished. The significance of the statutory principle of stipulation of the principle of a crime is: First, it shows that China is a socialist country ruled by law; second, it protects the legitimate rights of citizens more comprehensively; third, it adapts to the international trend of progress. Professor Gao pointed out that in the criminal law, the principle of legality of crimes should be established. In addition to the abolition of the analogy system, the improvement of legislative techniques should be emphasized, especially the content should be clearly stated. ("On the establishment of the principle of criminal law in China's criminal law", containing "Chinese (2) on the evaluation criteria of crime and the theoretical model of criminal composition. What is the crime evaluation standard, what are the basic characteristics of crime, and what are the essential characteristics of crime? How to correctly distinguish the boundaries between sin and non-crime, these problems are based on how to establish the criteria for the evaluation of crimes. The understanding of these issues, Chinese and foreign criminal law scholars have different views, no agreement.
Based on the profound understanding of the criminal legislation spirit of our country and the in-depth study of the criminal theory, Mr. Gao believes that crime is a crime that endangers society, violates the criminal law, and should be punished by punishment. Certain social harm is the essential feature of crime, and it is the general standard for distinguishing between legal behavior and criminal behavior; criminal illegality is the legal characteristic of crime, and it is the legal basis for distinguishing between common illegal behavior and criminal behavior; The legal consequences that an act must bear are an indispensable basic feature of a crime. At the same time, it is pointed out that the three principles must be adhered to in the investigation and judgment of the harmfulness of behavioral society. First, it is necessary to examine it with a historical viewpoint and put a certain behavior under certain historical conditions to judge whether it is harmful to society. It is necessary to pay attention to the social harm of the same behavior from nothing, from nothing to nothing, from small to large and from large to small. Second, we must use a comprehensive perspective to examine, and we must not ignore all subjective and objective factors that affect the evaluation of social harmfulness. Not only do you see the tangible and material hazards of behavior, but you also need to see the harm that behavior brings to social politics and social psychology. The third is to examine with an essential point of view, not to be confused by the superficial phenomenon of things, and to easily make judgments with or without social harm. (Editor Gao Mingqi: Criminal Law (Revised), 17. Page, Law Press, 1984) The theoretical model of criminal constitution In the history of the development of criminal law, there have been two major criminal constitutional patterns. One is the criminal constitutional model of civil law countries. It is represented by Germany and Japan and can be called the “continental modelâ€. This kind of crime constitutes a pattern consisting of the three elements of the stipulation (conformity), illegality and accountability of the elements of crime. It is characterized by the separation of the criminal constitution from the theoretical line of criminal responsibility 203.2. The other is the criminal composition model of the former Soviet Union and Eastern European countries. It is represented by the former Soviet Union and can be called the "Sudong model." This criminal composition model consists of four major elements: the object of crime, the objective aspect of crime, the subject of crime and the subjective aspect of crime. It is characterized by the combination of criminal constitution and criminal responsibility. The constitution of crime is the sole basis for criminal responsibility.
In the 1950s, the criminal law scholars in China were deeply influenced by the criminal law theory of the former Soviet Union. Mr. Gao made it clear that the idea of ​​denying the constitution of general crime is wrong. Establishing a scientific system of crime is not only necessary but also possible. However, the establishment of the criminal constitutional model must not only learn and learn from the existing criminal constitutional patterns, but also must not be completely copied. It must also conform to the reality of criminal legislation in China, and facilitate the judicial organs to handle specific cases, which will help the perfection of the criminal law theoretical system. And it must have Chinese characteristics.
In the criminal law school of China, Mr. Gao proposed the theoretical model of crime composition earlier. Mr. Gao believes that the constitution of crime is the organic unity of all subjective and objective elements necessary for the crime to determine the social harmfulness and extent of a specific act. These claims have been embodied in his criminal law works. (Editor Gao Mingqi: "Criminal Law", Chapter 1, Section 1, Law Press, 1982; Gao Mingwei: "General Principles of Criminal Law", Chapter 7, Tianjin People's Publishing House, 1988; Gao Minghao, Editor: "Chinese Criminal Law", Chapter 7 verse 1, Renmin University of China Press, 1989) When it comes to the reform of the criminal constitutional model, Mr. Gao believes that the formation of a theoretical system has been the result of years of exploration by countless people. The study of the theory of criminal constitution needs to be deepened, and some content needs innovation and perfection. However, it is not advisable to completely negate the current theoretical model. The reason is very simple. This model has been accepted by most people in the criminal law community. It has also experienced the application and testing of judicial practice in China for many years, which proves that it is relatively scientific and practical. Of course, certain aspects and specific problems need to be improved.
The basic type of causality about causality is a very important and complex issue in criminal law. The type of causality is the most basic problem in the theory of causality in criminal law. It directly involves the characterization of behavior and its criminal responsibility. In recent years, there have been two different views on the study of causality in China's criminal law academic circles. One is the inevitable causal relationship; the other is the inevitable accidental causality. Mr. Gao believes that causality, which is one of the objective foundations of criminal responsibility, is mostly an inevitable causal relationship; however, in some cases, even if there is only an accidental causal relationship between the act and the result, criminal responsibility should be assumed. Therefore, limiting the causal relationship in criminal law to the inevitable causal relationship is an overly absolute view.事实上，既然哲å¦ä¸Šæœ‰å¿…然性与å¶ç„¶æ€§ä¹‹åˆ†ï¼Œé‚£ä¹ˆï¼Œä¸ºä½•2003.2é«˜æ ¡ç†è®ºæˆ˜çº¿åœ¨åˆ‘法å¦ä¸Šå¦å®šå¶ç„¶æ€§å‘¢æ‰€è°“刑法上的å¶ç„¶å› æžœå…³ç³»ï¼Œæ— éžæ˜¯æŒ‡æŸä¸€å±å®³è¡Œä¸ºäº§ç”ŸæŸä¸€å±å®³ç»“果，这一å±å®³ç»“果在å‘展过程ä¸åˆä¸Žå¦å¤–çš„å±å®³è¡Œä¸ºæˆ–事件相结åˆï¼Œä»Žè€Œåˆä¹Žè§„律地产生了å¦ä¸€ç»“果，åŽé¢è¿™ä¸€å±å®³ç»“果尽管ä¸æ˜¯å‰ä¸€å±å®³è¡Œä¸ºå¿…然导致的，它对于å‰ä¸€è¡Œä¸ºæ¥è¯´ï¼Œå¯èƒ½å‡ºçŽ°ï¼Œä¹Ÿå¯èƒ½ä¸å‡ºçŽ°ï¼Œå¯èƒ½è¿™æ ·å‡ºçŽ°ï¼Œä¹Ÿå¯èƒ½é‚£æ ·å‡ºçŽ°ï¼Œä½†æ˜¯ï¼Œå®ƒç»ˆäºŽå‡ºçŽ°äº†ã€‚如果没有å‰ä¸€å±å®³è¡Œä¸ºï¼Œæ— 论如何这ç§å±å®³ç»“果也ä¸ä¼šå‡ºçŽ°ã€‚
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å°±å•ä½çŠ¯ç½ªçš„立法完善问题，高先生指出，我国法律上规定的å•ä½çŠ¯ç½ªçš„罪ç§ä¸å°‘，而å¸æ³•å®žè·µä¸åˆ¤å®šå•ä½çŠ¯ç½ªçš„案例å´æžå…¶é²œè§ã€‚这至少说明我国立法上对å•ä½çŠ¯ç½ªçš„规定还ä¸å¤Ÿå®Œå–„。解决这个问题至少应当åšåˆ°ï¼šâ‘´å¯¹å•ä½çŠ¯ç½ªåŠ 以明确界定。⑵对å•ä½çŠ¯ç½ªçš„罪ç§èŒƒå›´åŠ 以é™åˆ¶ã€‚ä¼ ç»Ÿä¸Šæ‰€è°“â€œè‡ªç„¶çŠ¯â€ï¼Œå¦‚æ€äººã€ä¼¤å®³ã€å¼ºå¥¸ã€æŠ¢åŠ«ã€æ”¾ç«ç‰ç½ªï¼Œä¸å¯èƒ½æœ‰å•ä½çŠ¯ç½ªã€‚å•ä½çŠ¯ç½ªåªå®œé™å®šä¸ºç»æµŽçŠ¯ç½ªå’Œå¦¨å®³ç¤¾ä¼šç®¡ç†ç§©åºç½ªä¸çš„æŸäº›çŠ¯ç½ªã€‚（3）对å•ä½çŠ¯ç½ªä¸€å¾‹é‡‡å–“åŒç½šåˆ¶â€ã€‚对å•ä½çŠ¯ç½ªçš„æ•°é¢èµ·ç‚¹å¯é«˜äºŽè‡ªç„¶äººçŠ¯ç½ªçš„æ•°é¢èµ·ç‚¹ï¼›ä½†å¯¹å•ä½ä¸ç›´æŽ¥è´£ä»»äººå‘˜åˆ‘äº‹è´£ä»»çš„æ ‡å‡†ä¸€èˆ¬åº”ä¸Žè‡ªç„¶äººçŠ¯è¯¥ç§ç½ªçš„刑事责任æŒå¹³ã€‚（'）对å•ä½çŠ¯ç½ªåº”采用总则与分则相结åˆçš„立法模å¼ã€‚（5）对å•ä½çŠ¯ç½ªå¦‚何追究刑事责任，应当在刑事诉讼法上作出相应的规定。（《试论我国刑法改é©çš„å‡ ä¸ªé—®é¢˜ã€‹ï¼‰å…³äºŽæ»åˆ‘çš„å˜åºŸé—®é¢˜è‡ª18世纪æ„大利刑法å¦å®¶åˆ‡è¨é›·è´å¡é‡Œäºšåœ¨å…¶å著《论犯罪与刑罚》ä¸é¦–倡废附除æ»åˆ‘以æ¥ï¼Œæ»åˆ‘å˜åºŸä¹‹äº‰ä¸€ç›´æŒç»ä¸æ–。两百多年æ¥ï¼Œæ»åˆ‘ä¿ç•™è®ºè€…å’Œæ»åˆ‘废除论者å„执己è§ï¼Œé’ˆé”‹ç›¸å¯¹ï¼Œç†è®ºä¸Šäº’有消长。
作为一个拥有13亿人å£çš„泱泱大国，ä¸å›½åœ¨æ»åˆ‘å˜åºŸé—®é¢˜ä¸Šçš„æ€åº¦ï¼Œæ— 疑将对世界废除æ»åˆ‘è¿åŠ¨äº§ç”Ÿæ·±åˆ»çš„å½±å“。对æ¤ï¼Œé«˜å…ˆç”Ÿæœ‰ç€æ¸…醒的认识。é¢å¯¹å„国日益高涨的废除æ»åˆ‘的呼声，高先生认为，我们既ä¸èƒ½ç›²ä»Žï¼Œä¹Ÿä¸èƒ½æ¼ 视，而必须从ä¸å›½çš„实际出å‘，并关注世界æ»åˆ‘å‘å±•çš„è¶‹åŠ¿ã€‚ä»–è®¤ä¸ºï¼Œæ ¹æ®ä¸å›½çŽ°å®žçš„国情ã€æ°‘情和罪情，决ä¸èƒ½ç«‹å³åºŸé™¤æ»åˆ‘。但是，必须åšå†³è´¯å½»â€œåšæŒå°‘æ€ï¼Œé˜²æ¢é”™æ€ï¼Œä¸¥ç¦ä¹±æ€â€çš„æ»åˆ‘政ç–，尽å¯èƒ½å‡å°‘æ»åˆ‘，并慎é‡åœ°é€‚用æ»åˆ‘。为æ¤ï¼Œä»–ä¸»å¼ å¯¹é€‚ç”¨æ»åˆ‘的范围和对象，è¦ä¸¥æ ¼é™åˆ¶ï¼›å¯¹é€‚用æ»ï¼2003.2é«˜æ ¡ç†è®ºæˆ˜çº¿åˆ‘的程åºï¼Œè¦ä¸¥æ ¼ä¾æ³•ï¼›åœ¨æ»åˆ‘的执行上，è¦é‡è§†æ»åˆ‘缓期执行制度的è¿ç”¨ã€‚针对国际上以æ»åˆ‘为借å£ï¼Œå¯¹ä¸å›½æ‰€ä½œçš„æ— ç«¯æ”»å‡»ï¼Œé«˜å…ˆç”Ÿä¸¥æ£æŒ‡å‡ºï¼Œä¸å›½è‡´åŠ›äºŽä¿æŠ¤ç»å¤§å¤šæ•°äººçš„生命财产ä¸å—犯罪侵犯，而ä¸æ€¥äºŽä¸ºåºŸé™¤æ»åˆ‘而奋斗；社会的文明与进æ¥ï¼Œä¸èƒ½ä»¥æ˜¯å¦åºŸé™¤æ»åˆ‘ä¸ºæ ‡å¿—ã€‚ï¼ˆã€Šç•¥è®ºä¸åŽäººæ°‘共和国刑法ä¸çš„æ»åˆ‘》，载国际刑法å¦å会会刊《国际刑法评论》英文版，我国1979年刑法典在æ»åˆ‘立法上较好地体现了罪ç§æˆå€å¢žé•¿ã€‚高先生指出，人民民主专政需è¦æœ‰æ»åˆ‘，我国决ä¸åºŸé™¤æ»åˆ‘，但è¦å°½é‡æŽ§åˆ¶æ»åˆ‘ã€‚ä»–ä¸»å¼ ï¼Œåˆ‘æ³•å…¸çš„ä¿®æ”¹å¯¹æ»åˆ‘的设置和é™åˆ¶åº”有大的动作。一方é¢é‡ç”³1979年刑法总则ä¸çš„有关æ£ç¡®è§„定：其一，æ»åˆ‘åªé€‚用于罪大æ¶æžçš„犯罪分å，并对“罪大æ¶æžâ€
具体表述为是指“犯罪性质和åŽæžœç‰¹åˆ«ä¸¥é‡ï¼Œè€Œä¸”犯罪人主观æ¶æ€§ç‰¹åˆ«å¤§â€çš„情形。其二，æ»åˆ‘ä¸é€‚用于犯罪的时候ä¸æ»¡18å²çš„人和追诉审判的时候怀å•çš„å¦‡å¥³ï¼Œåˆ åŽ»å…³äºŽå¯¹å·²æ»¡16å²ä¸æ»¡18å²çš„人å¯ä»¥é€‚ç”¨å†³çš„ä»¥å¤–ï¼Œéƒ½åº”å½“æŠ¥è¯·æœ€é«˜äººæ°‘æ³•é™¢æ ¸å‡†ã€‚å¦ä¸€æ–¹é¢ï¼Œåœ¨åˆ†åˆ™æ¡æ–‡ä¸è¦å¯¹æŒ‚æ»åˆ‘的罪ç§åšå‡ºå®¡æ…Žçš„ç›é€‰ã€‚æ»åˆ‘应主è¦é€‚用于å±å®³å›½å®¶å®‰å…¨ã€å±å®³å›½é˜²ã€å±å®³å…¬å…±å®‰å…¨ã€ä½¿ç”¨æš´åŠ›ä¸¥é‡ä¾µçŠ¯äººèº«æƒåˆ©å’Œè´¢äº§æƒåˆ©çš„æŸäº›æ•…æ„犯罪以åŠé‡å¤§çš„毒å“犯罪和贪利型渎èŒçŠ¯ç½ªã€‚（《试论我国刑法改é©çš„å‡ ä¸ªé—®é¢˜ã€‹ï¼‰å…³äºŽå®šç½ªçš„åŸºæœ¬ç†è®ºä»€ä¹ˆæ˜¯å®šç½ªï¼Œå®šç½ªçš„æ ¹æ®æ˜¯ä»€ä¹ˆï¼Œå¦‚何处ç†å®šç½ªä¸ŽçŠ¯ç½ªæž„æˆçš„å…³ç³»ï¼Œæ€Žæ ·åšåˆ°æ£ç¡®åœ°å®šç½ªï¼Œè¿™æ˜¯è¿‘å¹´æ¥åˆ‘法å¦ç•Œç ”ç©¶çš„è¯¾é¢˜ã€‚é«˜å…ˆç”Ÿå¯¹è¿™äº›é—®é¢˜ä½œäº†è¾ƒä¸ºæ·±å…¥çš„ç ”ç©¶å’Œè¾ƒä¸ºç³»ç»Ÿçš„è®ºè¿°ã€‚
首先，高先生认为，在定罪的内容上至少包括以下å…个方é¢ï¼šï¼ˆ1）确定行为是å¦æž„æˆçŠ¯ç½ªï¼Œåˆ’清罪与éžç½ªçš„ç•Œé™ã€‚（-）确定行为构æˆä½•ç§çŠ¯ç½ªï¼Œåˆ’清æ¤ç½ªä¸Žå½¼ç½ªçš„ç•Œé™ã€‚（3）确定行为ä¸æ‰€åŒ…å«çš„罪数，区分一罪与数罪的界é™ã€‚（4）确定行为的犯罪层次，区分é‡ç½ªä¸Žè½»ç½ªçš„ç•Œé™ã€‚（5）确定故æ„犯罪的阶段，进而区分犯罪的完æˆå½¢æ€ä¸Žæœªå®Œæˆå½¢æ€ã€‚（6）确定行为是å¦æž„æˆå…±åŒçŠ¯ç½ªåŠå…¶è¡¨çŽ°å½¢å¼ï¼Œåˆ’清å•äººçŠ¯ç½ªä¸Žå…±åŒçŠ¯ç½ªçš„ç•Œé™ã€‚ï¼ˆã€Šåˆ‘æ³•é—®é¢˜ç ”ç©¶ã€‹149.62页）其次，高先生认为，关于定罪的基本特å¾æœ‰å››ï¼šï¼ˆ1）定罪的主体åªèƒ½æ˜¯å…¬å®‰æœºå…³ã€æ£€å¯Ÿæœºå…³å’Œäººæ°‘法院。其ä¸ï¼Œäººæ°‘法院对公诉和自诉案件，享有最终的定罪决定æƒã€‚（2）定罪的对象是行为人的行为，而ä¸æ˜¯äººçš„æ€æƒ³ã€‚（3ï¼‰å®šç½ªçš„æ ¹æ®åªèƒ½æ˜¯åˆ‘法规定的犯罪构æˆã€‚
（4）定罪的过程表现为ç›é€‰äº‹å®žã€åˆ†æžæž„æˆã€ç¡®å®šç½ªå。（åŒä¸Šä¹¦ï¼Œ149162页）å†æ¬¡ï¼Œé«˜å…ˆç”Ÿè®¤ä¸ºï¼ŒçŠ¯ç½ªæž„æˆæ˜¯å®šç½ªçš„æ ‡å‡†å’Œä¾æ®ã€‚å› æ¤ï¼Œè¦æ£ç¡®åœ°å®šç½ªï¼Œå¿…é¡»åšæŒâ€œä¸‰ä¸ªæœ‰æœºç»Ÿä¸€ï¼ˆ1）åšæŒçŠ¯ç½ªæž„æˆæ˜¯å®¢è§‚è¦ä»¶å’Œä¸»è§‚è¦ä»¶çš„有机统一，å对客观归罪和主观归罪。（2）åšæŒçŠ¯ç½ªæž„æˆæ˜¯è¡Œä¸ºçš„社会å±å®³æ€§ä¸Žè¡Œä¸ºäººçš„人身å±é™©æ€§çš„有机统一，特别è¦æ³¨æ„人身å±é™©æ€§åœ¨å®šç½ªä¸çš„作用，把æ¡åæ˜ äººèº«å±é™©æ€§çš„罪å‰è¡¨çŽ°ã€ç½ªä¸è¡¨çŽ°å’Œç½ªåŽè¡¨çŽ°ã€‚（3）åšæŒçŠ¯ç½ªæž„æˆæ³•å¾‹è§„定和å¸æ³•å®žè·µçš„有机统一，è¦å–„于è¿ç”¨æ³•å¾‹è§„定的犯罪构æˆï¼ŒåŽ»å¤„ç†å…·ä½“的刑事案件。（åŒï¼ˆä¹ï¼‰å…³äºŽä¸€ç½ªä¸Žæ•°ç½ªçš„åŒºåˆ†é—®é¢˜ä»€ä¹ˆæ˜¯ä¸€ç½ªï¼Œä»€ä¹ˆæ˜¯æ•°ç½ªï¼ŒåŒºåˆ†ä¸€ç½ªä¸Žæ•°ç½ªçš„æ ‡å‡†æ˜¯ä»€ä¹ˆï¼Œåœ¨åˆ‘æ³•ç†è®ºä¸æ˜¯ä¸€ä¸ªä¼—说纷çºçš„问题。针对上述区分罪数的å„ç§è§‚点，高先生认为，对一罪与数罪的区分，必须采用统一的原则，ä¸èƒ½ç®€å•åœ°é‡‡ç”¨å®¢è§‚æ ‡å‡†æˆ–ä¸»è§‚æ ‡å‡†ï¼Œä¹Ÿä¸èƒ½æœ‰æ—¶é‡‡ç”¨å®¢è§‚æ ‡å‡†ï¼Œæœ‰æ—¶é‡‡ç”¨ä¸»è§‚æ ‡å‡†ã€‚å¦åˆ™ï¼Œä¸ä»…æ— åŠ©äºŽæ£ç¡®åœ°åŒºåˆ†ä¸€ç½ªä¸Žæ•°ç½ªï¼Œå而会徒增罪数判æ–ä¸Šçš„æ··ä¹±ã€‚å› æ¤ï¼Œä¸Šè¿°ä¸‰ç§å¦è¯´å‡ä¸è¶³å–。基于这ç§è®¤è¯†ä»–认为，我国刑法å¦åœ¨ç½ªæ•°çš„区分上，必须åšæŒä¸»å®¢è§‚相统一的犯罪构æˆç†è®ºï¼Œä»¥çŠ¯ç½ªæž„æˆçš„ä¸ªæ•°ä¸ºæ ‡å‡†ï¼Œæ¥åŒºåˆ†ä¸€ç½ªä¸Žæ•°ç½ªã€‚
具备一个犯罪构æˆçš„为一罪，具备两个以上犯罪构æˆçš„为数罪。详言之，基于一个犯罪故æ„或过失，实施了一个å±å®³è¡Œä¸ºï¼Œè§¦çŠ¯ä¸€ä¸ªç½ªå的，是一罪；基于两个以上的故æ„或过失，实施了两个以上的å±å®³è¡Œä¸ºï¼Œè§¦çŠ¯ä¸¤ä¸ªä»¥ä¸Šç½ªå的是数罪。（åŒä¸Šä¹¦ï¼Œ2524页）为了进一æ¥ç ”究一罪ä¸çš„å¤æ‚å½¢æ€ï¼Œé«˜å…ˆç”ŸæŠŠä¸€ç½ªåˆ’分为三大类：一是行为在刑法上规定为一罪或者处ç†æ—¶ä½œä¸ºä¸€ç½ªçš„情况，å³é€šå¸¸æ‰€è¯´çš„法定的一罪或è£åˆ¤çš„一罪，这ç§ä¸€ç½ªå½¢æ€åŒ…括继ç»çŠ¯ã€æƒ³åƒç«žåˆçŠ¯å’ŒåŠ é‡ç»“果犯。二是数行为在刑法上规定为一罪的情况，包括惯犯和结åˆçŠ¯ã€‚三是数行为在处ç†æ—¶ä½œä¸ºä¸€ç½ªçš„情况，包括连ç»çŠ¯ã€ç‰µè¿žçŠ¯å’Œå¸æ”¶çŠ¯ã€‚
关于牵连犯问题，高先生也给予了较多的关注。
牵连犯是指以实施æŸä¸€çŠ¯ç½ªä¸ºç›®çš„，而犯罪的方法行为或结果行为åˆè§¦çŠ¯äº†å…¶ä»–罪å的犯罪形æ€ã€‚æˆç«‹ç‰µè¿žçŠ¯å¿…须具备下列特å¾ï¼šï¼ˆ1）实施了数个犯罪行为；（2）实施的数个行为触犯的是ä¸åŒçš„罪å；（3ï¼‰æ•°ä¸ªçŠ¯ç½ªè¡Œä¸ºä¹‹é—´å…·æœ‰ç‰µè¿žå…³ç³»ã€‚ï¼ˆã€Šè®ºç‰µè¿žçŠ¯çš„å‡ ä¸ªé—®å…³äºŽå¦‚ä½•åˆ¤æ–数个犯罪行为之间是å¦å…·æœ‰ç‰µè¿žå…³ç³»ï¼Œåœ¨ä¸å¤–刑法ç†è®ºä¸Šä¼—说ä¸ä¸€ã€‚é«˜å…ˆç”Ÿè®¤ä¸ºï¼Œæ‰€è°“æœ‰ç‰µè¿žå…³ç³»ï¼Œæ˜¯æŒ‡è¡Œä¸ºäººæ‰€å®žæ–½çš„æ•°ä¸ªçŠ¯ç½ªä¹‹é—´å…·æœ‰æ–¹æ³•ä¸Žç›®çš„æˆ–åŽŸå› ä¸Žç»“æžœçš„å¯†åˆ‡å…³ç³»ã€‚ä¹Ÿå°±æ˜¯è¯´ï¼Œæ•°ä¸ªçŠ¯ç½ªè¡Œä¸ºè¡¨çŽ°ä¸ºç›®çš„è¡Œä¸ºã€æ–¹æ³•è¡Œä¸ºæˆ–结果行为，以目的行为为轴心，方法行为是为实现目的行为æœåŠ¡çš„，结果行为是由目的行为派生引起的。按时间顺åºè¯´ï¼Œæ–¹æ³•è¡Œä¸ºåœ¨å‰ï¼Œç›®çš„行为在次，结果行为在åŽã€‚对牵连关系的判æ–，必须åšæŒä¸»å®¢è§‚相统一的原则。如果从客观上看，方法行为与目的行为或者目的行为与结果行为之间，具有事实上的密切è”系；从主观上看，行为人对数行为有统一的犯æ„，就å¯ä»¥è®¤ä¸ºå®ƒä»¬ä¹‹é—´å…·æœ‰ç‰µè¿žå…³ç³»ã€‚（åŒä¸Šï¼‰å…³äºŽç‰µè¿žçŠ¯çš„定罪é‡åˆ‘问题，高先生认为，牵连犯是è£åˆ¤ä¸Šçš„一罪，而ä¸æ˜¯ä¸€èˆ¬çš„å®žè´¨ä¸Šçš„æ•°ç½ªã€‚å› æ¤ï¼Œå¯¹ç‰µè¿žçŠ¯åº”当''从一é‡å¤„æ–“，å³æŒ‰é‡çš„罪从é‡å¤„罚，而ä¸èƒ½å®žè¡Œæ•°ç½ªå¹¶ç½šã€‚所谓从é‡å¤„罚，是指应当在é‡ç½ªçš„法定刑幅度内适当从é‡ï¼Œè€Œä¸æ˜¯ä¸€å¾‹åˆ¤å¤„法定最高刑。如果é‡ç½ªæ²¡æœ‰é™„åŠ åˆ‘ï¼Œè€Œè½»ç½ªæœ‰é™„åŠ åˆ‘ï¼Œä»Žç‰µè¿žçŠ¯çš„æ•´ä½“æ€§è€ƒè™‘ï¼Œåœ¨åˆ¤å¤„é‡ç½ªçš„主刑的åŒæ—¶ï¼Œåº”é™„åŠ é€‚ç”¨è½»ç½ªçš„é™„åŠ åˆ‘ã€‚åœ¨é‡ç½ªçš„最低法定刑低于轻罪的最低法定刑时，ä¸èƒ½åˆ¤å¤„低于轻罪最低法定刑的刑罚，å¦åˆ™å°±æœ‰æ‚–于''从一é‡å¤„æ–â€çš„原则。在对牵连犯é‡åˆ‘æ—¶ï¼Œæ— è®ºæ˜¯é‡ç½ªçš„法定情节，还是轻罪的法定情节，都è¦äºˆä»¥ç»¼åˆè€ƒè™‘。总之，对牵连犯的处罚，既è¦ä¸Žå•çº¯çš„ä¸€ç½ªä¸¥æ ¼åŒºåˆ«ï¼Œåˆè¦ä¸Žä¸€èˆ¬çš„数罪并罚有显著ä¸åŒã€‚（åŒä¸Šï¼‰å…³äºŽç‰µè¿žçŠ¯çš„å˜åºŸé—®é¢˜ï¼Œé«˜å…ˆç”Ÿè®¤ä¸ºï¼Œç‰µè¿žçŠ¯å®œå˜ä¸å®œåºŸã€‚å¹¶é’ˆå¯¹ä¸»å¼ åºŸé™¤ç‰µè¿žçŠ¯çš„å¦è€…所æŒçš„论æ®ï¼Œè¿›è¡Œäº†å驳：（1）å–消牵连犯已æˆä¸ºä¸€ç§''立法趋势“，是夸大其è¯ã€‚å› ä¸ºæ˜Žç¡®åœ¨åˆ‘æ³•ä¸Šè§„å®šç‰µè¿žçŠ¯çš„ï¼Œæœ¬æ¥å°±åªæœ‰ä¸ªåˆ«å›½å®¶å’Œåœ°åŒºã€‚而这些国家和地区，没有一个从立法上å–消牵连犯。至于尚未明确æ出牵连犯的国家和地区，ä¸ç‰äºŽå°±å¦è®¤ç‰µè¿žçŠ¯çš„å˜åœ¨ã€‚（2）我国刑事立法和å¸æ³•è§£é‡Šå€¾å‘äºŽå¯¹ç‰µè¿žçŠ¯å®žè¡Œæ•°ç½ªå¹¶ç½šï¼Œæ²¡æœ‰å……åˆ†çš„æ ¹æ®ã€‚å› ä¸ºï¼Œä»ŽåŽ†å²å’ŒçŽ°çŠ¶çœ‹ï¼Œåˆ‘事立法和å¸æ³•è§£é‡Šå¹¶éžå€¾å‘于对牵连犯数罪并罚，而是有时''从一é‡å¤„æ–â€ï¼Œæœ‰æ—¶æ•°ç½ªå¹¶ç½šã€‚（3）牵连犯实际是想åƒç«žåˆçŠ¯ã€å¸æ”¶çŠ¯æˆ–典型的数罪，是有æ„æ··æ·†ä¸åŒçŠ¯2003.2é«˜æ ¡ç†è®ºæˆ˜çº¿ï¼
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关于刑事责任的概念，我国刑法论著ä¸ä¼—说纷çºï¼Œå¤§ä½“上å˜åœ¨æ³•å¾‹è´£ä»»è¯´ã€åˆ‘事追究和刑罚处罚说ã€åˆ‘事义务说ã€å¦å®šè¯„价（谴责ã€è´£éš¾è¯´ã€æ³•å¾‹åŽæžœè¯´ä»¥åŠå¿ƒç†çŠ¶æ€è¯´ç‰å‡ ç§ä¸»å¼ 。高先生对上述ç§ç§è¯´æ³•è¿›è¡Œè¿‡ç²¾è¾Ÿçš„评æžï¼Œä»–认为，这些说法å„有优点，但也å„有ä¸è¶³ã€‚在他看æ¥ï¼Œåˆ‘事责任应从两个方é¢æ¥ç†è§£ï¼šä»Žè¡Œä¸ºäººæ–¹é¢è¯´ï¼Œåˆ‘事责任就是行为人对è¿å刑事法律义务的行为（犯罪所引起的刑事法律åŽæžœï¼ˆä¸»è¦è¡¨çŽ°ä¸ºåˆ‘罚的形å¼çš„一ç§èƒ½æ供衡é‡æ ‡å‡†çš„刑事实体性义务。从国家方é¢æ¥è¯´ï¼Œåˆ‘事责任就是国家对实施刑事è¿æ³•è¡Œä¸ºå³çŠ¯ç½ªè¡Œä¸ºçš„人的一ç§å¦å®šè¯„价。具体地说，就是国家å¸æ³•æœºå…³ä¾ç…§åˆ‘事法律规定，对实施犯罪的人所作的一ç§å¦å®šçš„é“德政治评价。æ®æ¤ï¼Œåˆ‘事责任就是指：行为人对è¿å刑事法律义务的行为所引起的刑事法律åŽæžœèƒ½æ供衡é‡æ ‡å‡†çš„ã€ä½“现国家对行为人å¦å®šçš„é“德政治评价的刑事实体性义务。刑事责任与其他法律责任的区别在于：追究刑事责任的主体，åªèƒ½æ˜¯å›½å®¶å¸æ³•æœºå…³ï¼›æ‰¿æ‹…刑事责任的主体，åªèƒ½æ˜¯çŠ¯ç½ªäººï¼›è¿½ç©¶åˆ‘事责任必须通过法定的刑事诉讼程åºï¼›åˆ‘事责任的一般法律åŽæžœæ˜¯å¯¹çŠ¯ç½ªäººåˆ¤å¤„刑罚。
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Hengshui 89 import and export trade Co., Ltd. is a company specializing in the production of Arab products, which integrates industry and trade. The factory of the company has more than 10 years of experience in the production of Arab clothing, with more than 200 clothing production machines; Specializing in men's Arabian robes and pants products, including: shirts, Saudi robes, Sudan robes, Kuwait robes, Qatar robes, UAE robes, Libya robes, Morocco robes, Afu robes Khan suits, Oman suits and other Muslim clothing, Arab women's clothing mainly for sample processing, daily production of more than 10000 Arabian robes; This year, we have developed a production line of knitted products for the Middle East market, such as Cotton Underwear, T-Shirts, women's suspenders, etc; Other Arab daily necessities are also involved, such as the Arabian tapestry, Arabian incense burner and so on; Welcome to our company to visit and negotiate.
Normaly For Men's Size: 54,56,58,60,62
For Kids Size: 20,22,24,26,28,30,32,34,36,38,40,42,44,46,48,50,52.
We supply kinds of design embroidery,piping,. with collar,with out collar.
Short sleeve,long sleeve. With Pants with out Pants. all can be customized.
Abaya,Arabic Women Dress,Arabian Women Clothing,Muslim Lady Dress Clothing
Hengshui Bajiu Imp.& Exp.Trade Co.,Ltd , https://www.jalabiyatrade.com