【Reading Notes】Professor Zhang Mingkai, Principles of Interpretation of the Criminal Law (Volume II) (Chapter 9)

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Chapter IX: Single and Plural Acts

Chapter 9 of this book systematically and completely expounds on single acts and plural acts, and discusses them from the perspective of distinguishing meanings, basic analysis, controversial issues, and practical misunderstandings, so as to help readers have a clearer understanding of single acts and plural acts, and strengthen their understanding of the sub-rules of criminal law.

Section 1: Distinguishing Meanings

The commission of an act is one of the most important concepts in criminal law, in which it has a variety of functions.

Correspondingly, it is equally important to clarify whether a particular provision of the Criminal Code requires a single act or a plural act (the so-called multiple acts). Before discussing whether the acts provided for in the provisions of the Criminal Law are single acts or plural acts, it is necessary to clarify whether the acts provided for in the provisions of the Criminal Law are all acts. The author's basic view is that although the acts provided for in the provisions of the specific provisions of the Criminal Law of the Mainland are generally carried out acts, there are exceptions. In other words, the acts described in a few statutes include not only the act, but also the preparatory act.

How to determine whether the act of carrying out a crime provided for (required) by a certain article of the Criminal Law is a single act or a plural act? It is true that it is possible to draw conclusions through formal criteria such as legal terms and expressions. However, conclusions based solely on formal criteria are not necessarily appropriate. Because the language is always vague, it is sometimes difficult to accurately express the true meaning of criminal law. Therefore, it is necessary to make substantive judgments that conform to the true meaning of the criminal law.

Section 2 Fundamental Analysis

The wording of the provisions of the sub-provisions of the Criminal Law generally provides clues to distinguish whether the commission of a crime is a single act or a plural act. Example 1: If the word "or" is used between two acts (verbs) in a sub-provision of the Criminal Code, it indicates that the act of committing the crime is not a plural act, but a selective act. Example 2: If a sub-clause uses a pause between acts, it indicates that the offence is not a plural act, but a selective act. However, there are also situations where it is difficult to reach a reasonable conclusion, and the following is an analysis of the relevant terms used in the sub-provisions of the Criminal Law.

(i) "And"

From a grammatical point of view, when the words "and" or "and" are used between two acts (verbs) in a sub-provision of the Penal Code, generally speaking, the establishment (completion) of the crime requires a plural of acts. However, this is rare in the sub-provisions of the Penal Code.

First, although the use of "and" or "and" in the legal provision indicates that both acts are required to be present at the same time, otherwise the legal provision cannot be applied, it does not mean that the legal provision provides for a plural number of acts of execution for the constituent elements.

Secondly, although the law uses the words "and" or "and" between two acts (verbs), it is also possible that one of the acts is not an act, but only the other is an act, so that only the former act is committed and the commission of the offence is not initiated, and the latter act alone may constitute a crime.

Finally, there are several provisions of the Penal Code that do not use the words "and" and "and", but which give the impression that the words "and" and "and" are omitted, and therefore need to be analysed.

(ii) "and" and "and"

In Chinese, "和" is sometimes just "or", although it generally means juxtaposition.

In the provisions of the Criminal Code, "and" and "and" basically play the same role.

(iii) "...... Method" and "...... Means"

In the provisions of the Criminal Code, "to ...... Method" and "...... means", there are two situations: first, it shows that the act of committing the crime is a plural act; Second, it merely describes the specific manner in which the act was committed, and does not imply that the crime specified in it is plural.

In fact, the provisions of the sub-provisions of the Criminal Law are related to the "use of ...... Method "" to ...... means", most of which are descriptions of the acts themselves, and do not indicate that the crime has plural acts. This is because the act of being a physical activity of a person is inseparable from certain methods or means. The method is in fact a description of the content of the physical activity, and when the establishment of certain crimes requires a specific method or means, it is a requirement for the act itself, not for other elements other than the act. It follows that the method or means of committing a crime are inseparable from the act. Nowadays, the discourse generally decouples the method from the concept of behavior, so that behavior becomes an empty concept, and behavior itself does not exist.

(iv) "Taking advantage of position"

There are a large number of articles in the sub-provisions of the Criminal Law that use the expression "taking advantage of one's position", and many treatises regard "taking advantage of one's position" as an independent act, but this is not the case. Let's take the crime of embezzlement as an example.

The first paragraph of paragraph 1 of Article 271 of the Criminal Law stipulates that "a staff member of a company, enterprise or other unit who takes advantage of his position to illegally take possession of the property of his or her unit and the amount is relatively large shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined". If the so-called theft or deception by taking advantage of one's position is excluded from the crime of embezzlement, then the use of one's position in the crime of embezzlement refers to the possession of one's unit's property based on one's position or business. Under this premise, if the perpetrator takes the property for himself, the crime of embezzlement in public office is established. However, on the one hand, the act of appropriating property in the possession of one's position or business does not require the use of one's position. On the other hand, the perpetrator's prior possession of the unit's property based on his position or business is not an act constituting an element of the crime of embezzlement in public office, nor is it a preparatory act for the crime of embezzlement, but only a requirement for the object of the act.

(5) "Violation of State regulations"

In terms of the relationship with behavior, the "violation of national regulations" and "violations" stipulated in the sub-provisions of the mainland criminal law are ..... There are two types of regulations:

First of all, the law has both "violation of state regulations" and "violation of ...... statute", and there is a description of the behavior.

Second, there is a "violation...... regulations" and a statement of the results, without a description of the behavior. In such cases, it should be affirmed that there is a "violation...... Regulation" is an independent act.

In short, it cannot be "violated" or "violated" because there are "violations of state regulations" in the law...... statute", the crime provided for in the law is deemed to be a repeat offense.

Section 3: Controversial Issues

(1) Tax resistance

This book answers in the affirmative to the question of whether the crime of tax resistance is a single act or a plural act, and whether acts and omissions can be combined into a single crime.

If the illegal act is only manifested as a violation of the prohibitive norm and the imperative norm, then the relationship between action and omission is indeed opposite. However, (1) this antagonism is only in a general sense, and in no way implies either an act or an omission in a crime; It is entirely possible that the objective constituent elements require the perpetrator to achieve the effect of non-performance of the obligation (omission) by means of conduct (act) that violates the prohibitive norm. (2) the antagonistic relationship is in fact in relation to a single act (e.g., in the case of violence, the violation of a prohibitive norm; In the case of non-taxation, it is a violation of imperative norms), but many crimes include plural acts (which are still a crime in law), and it is entirely possible that plural acts include both acts and omissions. (3) If the crime of tax resistance is regarded as a simple omission, it is easy for the judicial authorities to ignore the determination of "violence and coercion", thereby expanding the scope of punishment. Thus, the book acknowledges that act and omission exist simultaneously in a constituent element (i.e., the result of act and omission, rather than coopetition). Thus, two acts in a repeat offense can be manifested as an act and an omission.

(ii) Reproduction and distribution in the context of infringement of intellectual property rights

Does "reproduction and distribution" mean "reproduction or distribution", or is it limited to "reproduction and distribution"?

As for the "distribution" in Article 217 of the Criminal Law, it may not be necessary to interpret it in accordance with the provisions of the Copyright Law, as long as it is interpreted in accordance with the meaning of everyday terms. In everyday parlance, "distribution" often refers to the "first printing" and wholesale sale of a work or other specific commodity, or to a "total distribution". In other words, it can be considered that the term "distribution" in article 217 of the Criminal Code includes both initial issuance or general distribution, as well as bulk sales or large-scale sales (but not limited to the first sale), while sales in article 218 of the Criminal Code are understood as retail sales. Such an interpretation is not only in line with the meaning of "issuance" in everyday language, but also reconciles the relationship between articles 217 and 218 of the Criminal Code, so as to balance the punishment for the two crimes.

(iii) Kidnapping

According to article 239 of the Penal Code, the crime of kidnapping is not a plural act, but a typical abbreviated second act.

First of all, the basic characteristic of the abbreviated second-act offender is that the "complete" criminal act originally consisted of two acts, but the criminal law stipulates that as long as the perpetrator commits the first act (i.e., the execution of the shortened second-act offender) for the purpose of committing the second act, it will be punished as a crime (completed), and the perpetrator is not required to objectively carry out the second act; At the same time, if the perpetrator did not aim to commit the second act, even if the first act was objectively committed, the crime is not established (or only other crimes are established).

Secondly, the result of the abbreviated second act is the result of the first act, not the result of the second. Therefore, the result of the crime of kidnapping is to infringe on the personal freedom of another person, without requiring damage to the property of a third person. Therefore, according to the occurrence of the crime, even if the purpose of extorting property is not achieved, if the result of the infringement of personal liberty occurs, the kidnapping is established.

(4) Solicitation and deception

This book considers the crime not to be a reciprocatual. First of all, swagger and deception is an act of impersonating a staff member of a state organ, which is a restriction on swagger and deception. Second, impersonating the staff of a state organ is itself a manifestation of swagger and deception. Finally, swagger and deception do not presuppose defrauding others of their property, nor do they require deception of other benefits as an element, as long as they mislead others into believing that the perpetrator is a staff member of a state organ, it is an act of swaggering and deception.

(5) The crime of assembling a crowd to fight

This book argues that the crime of assembling a crowd to fight is not a repeat offense, but a single offense.

First, the acts provided for in the sub-provisions of the Criminal Code should not be understood from a natural point of view, but from a normative point of view. In the crime of assembling a crowd to fight, assembling a crowd refers to the manner in which the fight is conducted.

Secondly, article 292 of the Penal Code punishes not only the ringleaders, but also other active participants.

Third, some people may believe that the constitutive elements of the crime of assembling a crowd to fight are determined with the ringleader as the core, and the ringleader has carried out the acts of assembling a crowd and fighting, so he is a repeat offender; Although the other active participants only participated in part of the commission (fighting), they were also joint principal offenders, so the active participants have a basis for punishment. However, the objective constituent element provided for in article 292 of the Penal Code is "assembling a crowd to fight", which is not only for the ringleaders, but also for the active participants.

Fourth, even for the ringleaders, they cannot be required to perform plural acts.

Fifth, if the crime of assembling a crowd to fight is a repeat offense, it means that gathering others is the beginning or even completion of the crime of assembling a crowd to fight, which unduly expands the scope of punishment for this crime.

Sixth, some people may think that the crime of assembling a crowd to fight is a repeat offense, but this kind of repeat offense does not require that one of the ringleaders has committed the repetition act, nor does it require that one of the active participants have committed the repetition act, but that different people can carry out the assembly and brawl respectively. However, the fourth and fifth reasons mentioned above can completely refute this view.

(6) Fraud-type dereliction of duty

In the view of this book, fraud, as an objective constituent element, can be divided into two situations in the crime of dereliction of duty:

In the first case, the provisions of the sub-provisions of the Criminal Law stipulate the specific content of the dereliction of duty, and fraud is only a synonym for the dereliction of duty and does not have a special meaning beyond the specific dereliction of duty. In other words, fraud is only an induction and generalization of specific job behavior.

On the other hand, the provisions of the Criminal Law do not provide for specific acts of dereliction of duty, and fraud becomes a specific act of dereliction of duty with a specific meaning.

Section 4: Misunderstandings in Practice

(i) Treat a separate offence as a follow-up to the previous act

In criminal law theory and judicial practice, statements such as "act B is an extension of act A" are quite common, but this statement has an adverse impact on conviction. Take, for example, the case of stealing or picking up another person's deposit certificate and then fraudulently obtaining a deposit from a bank.

This book holds that no matter what illegal means the perpetrator uses to obtain another person's bank passbook, if he uses another person's bank passbook to fraudulently obtain deposits through bank employees, it should be found to be a crime of fraud, not a crime of theft.

When determining a property crime (in a broad sense), it is first necessary to identify the victim and determine the specific content of the victim's outcome, and then determine what act caused the victim's result, and then determine the nature of the act. It cannot be taken for granted that the former act is the main act and the subsequent act is the subordinate act, nor can it be easily regarded as an extension of the previous act, or that the latter act is a part of the former act.

(ii) Add an act of practice before the act of force prescribed by law

In judicial practice, the following phenomenon has emerged: the provisions of the specific provisions of the Criminal Law originally provided for a single act, but the judicial organ added another act before this single act, making the single act a plural act. On the surface, the addition of constituent elements will limit the scope of punishment, but in fact, it significantly expands the scope of punishment and even violates the principle of legality of crimes.

It is undeniable that, in general, adding elements to the statutory constituent elements will narrow the scope of the establishment of the crime, because the more elements, the narrower the extension. However, when the addition of the commission of the crime is manifested in the extension of the commission to the preparatory act and the provision of more selective elements for the crime, it is not a restriction on the scope of punishment, but an expansion of the scope of punishment. This is because adding an act of implementation before the statutory act of implementation means that the preparatory act or some kind of ancillary act is recognized as the act of committing a crime, and the original and real act of implementation does not need to be present, and the outcome will inevitably expand the scope of punishment for the crime, and then violate the principle of legality of crimes.

(iii) Add an act of practice after the act of implementation prescribed by law

Take, for example, the crime of accepting bribes. According to article 385, paragraph 1, of the Criminal Code, the crime of accepting bribes includes two types of acts: one is to solicit a bribe, and the other is to accept a bribe. However, in judicial practice, the act of simply taking advantage of one's position to solicit bribes without actually obtaining bribes is generally not found to be the crime of accepting bribes, or only found to be an attempt to accept bribes. The reason is that, in judicial practice, the crime of soliciting bribes is understood as soliciting and accepting bribes, making the crime of soliciting bribes a repeat offense. In fact, the reason for this addition is that judicial practice treats the crime of accepting bribes as a property crime.

In fact, the legal interests protected by the crime of accepting bribes are not the property of others, but the non-bribery of the official acts of state functionaries, and it can also be said that the non-exchangeability of the official acts of state functionaries and their property. Since the legal interest protected by the crime of accepting bribes is the non-bribery of the official acts of state functionaries, in the case of soliciting bribes, even if the perpetrator does not actually obtain bribes, the act of soliciting has already infringed upon the non-bribery of official acts.

The improper addition of an act of enforcement after the statutory act of implementation will inevitably delay the standard of completion of the crime, which is not conducive to the realization of the purpose of protecting the legal interests of the criminal law.

Summary of impressions

It is important to clarify whether a particular provision of the Criminal Law requires a single act or a plural act for a crime. If the sub-provision provides for the commission of multiple acts, and the perpetrator has committed only one of the acts, it is generally possible to find that the offence has been committed, but it cannot be found to be a completed offence. If the sub-provision provides for a single act and the perpetrator commits a plurality of acts, it is possible to establish a more serious offence or constitute a plurality of offences. Therefore, it is necessary to make a clear distinction between singular and plural acts as provided for in the sub-provisions of the Criminal Code. This chapter not only explains in detail the specific provisions of the Criminal Law on single acts and plural acts, but also helps readers understand their significance and role in the actual application of law through a large number of cases and examples.

In the second section of this chapter, the author makes a distinction between "and", "and", "and", "and", "and", "and", "......and", " Method "" to ...... The five expressions of "means", "taking advantage of one's position" and "violating state regulations" were analyzed. Most of the provisions of the Criminal Law that use the word "and" require plural acts for the crime to be established, but the author points out that in this case, it is not always a plural act. For example, the author points out in the book that the commission of the crime of damaging commercial reputation and commodity reputation is not a plural act, and the criminal law theory should interpret "fabricating and disseminating false facts" in article 221 of the Criminal Law as "disseminating false facts that are known to be fabricated". Professor Zhang Mingkai's view is reasonable. Secondly, Professor Zhang Mingkai pointed out that the provisions of the Criminal Law on "...... Method "" to ...... means", most of which are descriptions of the acts themselves, and do not indicate that the crime has plural acts. This broadens the thinking of readers who think of such provisions as dividing the execution of a crime into an end act and a means act, and thus further deepens their understanding of the sub-provisions of the criminal law.

In the process of reading, I also deeply felt the importance of the principle of interpretation of the sub-rules of the criminal law. As an important part of the criminal law, the interpretation and application of the sub-provisions of the criminal law are directly related to the impartiality and authority of the law. Through the in-depth interpretation and understanding of the sub-provisions of the Criminal Law, we can better grasp the spirit and intent of the law, and more accurately judge the nature and legal consequences of criminal acts. At the same time, it will also help us to better safeguard the public interest and the rights and interests of individual citizens, and promote social harmony and stability.

In addition, through a large number of cases and examples, the book vividly demonstrates the specific application of single acts and plural acts. These cases not only help us to better understand the specific meaning of the legal provisions, but also show us the flexibility and complexity of the law in practical application. Through the study of these cases, we can better grasp the skills and methods of law application, and improve our legal literacy and practical ability.

In general, the discussion of single acts and plural acts in Chapter 9 of the Principles of Interpretation of the Specific Provisions of the Criminal Law has given me a deeper and more comprehensive understanding of this important concept in criminal law. By reading this chapter, I not only grasped the basic concepts and characteristics of single acts and plural acts, but also understood their application and significance in legal practice, which will be of great help to my future study of criminal law.

Producer: Zhang Yongjiang

Author: Ge Wenxi, 2023 master's student in criminal law, Xiangtan University Law School

Editor: Cai Haozhi

Editor-in-charge: Peng Xiaodi

Review: Zhang Yongjiang

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