Chapter 1 Rationale of Aggravated Consequential offense
1.4 Conclusion of This Chapter: Advocating Dual Combination Theory
Aggravated consequential offense should be coordinated with principle of mental culpability and proportionality. In light of Article 16 in Chinese Criminal Law, if one has no guilty mind with respect to the actual damage, he is not guilty of related crime.
Thus the extended result should be attributable to the defendant in premise of mental state, i.e., the defendant is convicted of aggravated consequential offense at least with
① Yamamoto Mitsuhide, Illegality of Aggravated Consequential Offense, 1990, The Chuo Law Review, 97(3•4), p261.
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respect to negligence. As a result, aggravated consequential offense naturally is combination of basic crime as basic crime and causing extended result through negligence or intention. For instance, crime of false imprisonment causing death is combination of false imprisonment and causing death through negligence. As a result, aggravated consequential offense has more illegality and culpability than basic crime, so it is impossible to completely evaluate aggravated consequential offense by unique punishment of basic crime. In other words, it is reasonable to increase punishment when basic conduct causes extended result.
However, aggravated consequential offense is not always punished in more severe way. For instance, maltreatment causing death is sentenced to fixed-term imprisonment of from two years to seven years.① Obviously, this punishment is very close to crime of causing death through negligence.② Similar punishments are included in crime of carrying out retaliation and frame-ups,③environmental pollution,④ violent interference with freedom of marriage, and so on. If these aggravated consequential offenses consist of very serious requirements, the corresponded punishment would be unbalanced in contrast to common negligent crime. Thus they are merely legislator’s affirmations to increase punishment, rather than unnecessary substantive reasons for combination. This kind of combination can be called “formal combination”.
① Article 260(1) in Chinese Criminal Law states that 260 whoever maltreats a member of his family, if the circumstances are flagrant, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance; Paragraph (2) states that whoever commits the crime mentioned in the preceding paragraph and causes serious injury or death to the victim shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years.
② The maximum punishment of causing death through negligence and violent interference causing death both are to impose the criminal on imprisonment of 7 years. However, causing death through negligence at least is sentenced to imprisonment of 3 years, while violent interference causing death shall be imposed on imprisonment of no less than 2 years.
③ Article 254 in Chinese Criminal Law states that any functionary of a State organ who, abusing his power or using his public office for private ends, retaliates against or frames up complainants, petitioners, critics or persons who report against him shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years.
④ Article 338 in Chinese Criminal Law states that whoever, in violation of the state provisions, discharges, dumps or disposes of any radioactive waste, any waste containing pathogens of any infectious disease, any poisonous substance or any other hazardous substance, which has caused serious environmental pollution, shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine; or if there are especially serious consequences, be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine.
Notice: this article is amended in “Article 46 in Amendment (VIII) to the defendant Law of the People’s Republic of China”.
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By contrast, most aggravated consequential offenses are provided severe punishments surpass total punishment for basic crime and causing extended result through negligence. This circumstance obviously cannot be responded in formal combination, so it is necessary to find the substantive reason for explaining the reality.
Dangerousness is a good choice to be supplementary rationale of severe punishment. In light of dangerousness theory, inherent or special dangerousness is the important element to increase punishment.① The reason of punishing aggravated consequential offense severely should resort to general prevention of potential damage offense.② Intentional crime and negligent crime no longer belong to purely external combination and have a kind of internal connection.③ If special dangerousness is added to illegality of aggravated consequential offense, punishable level would be heightened on the basis of combinative harmfulness of basic crime and causing extended result. In a word, substantive reason of increasing punishment in aggravated consequential offense is special dangerousness within basic crime and realization of this dangerousness.
It should be noticed that some aggravated consequential offenses don’t belong to imaginative concurrence of crimes. For instance, injury causing serious impairment belongs to concurrence of provisions rather than imaginative concurrence of intentional injury and causing serious impairment through negligence, because serious injury and slight injury infringe the same legal interest. However, injury causing serious impairment still can be treated as combination of intentional injury causing slight injury and causing injury through negligence. Thus principle of concurrence can restrict the kind of aggravated consequential offense. Because punishment of injury causing serious impairment is severer than total punishment for intentional injury causing slight impairment and causing serious impairment through negligence, not only the aggravated
① Ida Makoto, A Study of limitation on Attributing Result in the Aggravated Consequential Offense, Hogaku kenkyu : Journal of Law, 1987, Politics, and Sociology, 60(2), p252-253.
② Enomoto Touya, Research on Illegality of Aggravated Consequential Offense and Structure, 2007, Journal of Law and Political Studies , (73), p124.
③ Maruyama Masao, On Aggravated Consequential Offense, 1990, Seibundoh Publishing Co., Ltd, p231.
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consequential offense is formal combination, but it also needs substantive reason for increasing punishment, i.e., conduct of injury should be inherently dangerous to hurt other seriously.
As a result, aggravated consequential offense sentenced to slight statutory penalty is formal combination of basic crime and causing extended result through negligence.
On the contrary, aggravated consequential offense sentenced to serious statutory penalty needs substantive reason for combination. Thus there are dual dimensions for increasing punishment in aggravated consequential offense: (1) extended result caused by negligent conduct is the basis of increasing punishment; (2) special dangerousness exists in basic crime and realization of the dangerousness can be important element for deciding the level of increasing punishment.
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