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A Study on Aggravated Circumstances in Chinese Criminal Law

Author: ChenYouXian
Tutor: ZhangYongJiang
School: Xiangtan University
Course: Criminal Law
Keywords: circumstance-aggravated offender aggravated circumstances circumstance convictionreason of exists circumstance conviction circumstance sentence judicial determination
CLC: D924.3
Type: Master's thesis
Year: 2010
Downloads: 95
Quote: 1
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Abstract

Aggravated circumstances is a key element of conditions for the judgment of circumstance-aggravated offender. Aggravated circumstances stipulated in Chinese criminal law means the increase of degree or number of one or some situations and links when basic crime exists, develops and changes. Aggravated circumstances exists with a specific scope, and is different from other aggravated constitutions in legislation. Aggravated circumstances is widely stipulated in Chinese criminal law, and have become a characteristic of Chinese criminal law owning to its generality and ambiguity in legislation.Aggravated circumstances should be evaluated in dialectical and unity. There are many problems about Aggravated circumstances in legislation, judicial interpretation and judicial practice, whereas in China the existence of Aggravated circumstances is determined by criminal concept of "determination of nature and quantity" in Chinese criminal law, it is inevitable in the principle of legality and it is reasonable in the principle of crime balance. Clear definition of the nature of the Aggravated circumstances and providing certain criterion to identification of justice would be helpful to play the features of Aggravated circumstances itself and make necessary remedy on its irrationality.There are several theories on the definition of Aggravated circumstances, mainly they are: theory of circumstance conviction, theory of circumstance sentence, theory of the unity of circumstance conviction and sentence. The controversy of these theories focuses on whether circumstances of adjudgement can help to distinguish between felony and misdemeanor. Because the existence of felony and misdemeanor has a legal basis in China, circumstances of adjudgement can help to distinguish between felony and misdemeanor.The theory of circumstance conviction has important theoretical value and practical significance,however, the nature of the Aggravated circumstances should be re-interpreted in the sense of conviction in the circumstances.In the judicial determination of Aggravated circumstances, we should adhere to the principles of objective and subjective unity and prohibit duplication of assessment. In theory, Aggravated circumstances can be divided into subjective ones and objective ones. But Aggravated circumstances in Chinese criminal law can only be objective reflection of aspects of crime, rather than subjective reflection of that. Therefore the judicial determination of Aggravated circumstances should follow certain criterion, however there should be rule out the possibility of subjective Aggravated circumstances. Meanwhile, we should confirm that there exist extra factors of Aggravated circumstances in Chinese criminal law, but there are no subjective extra factors.

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