| The recent adjustment of the standard of the crime of corruption, especially the substantial increase of the amount standard of this crime, by the new amendment to the Chinese Criminal Law and related judicial interpretations has led to serious punishment imbalance between the crime of corruption and such ordinary property crimes as theft and fraud and it is therefore necessary to seek an appropriate solution to this problem in criminal dogmatics. The solutions based on the concurrence theory-either treating the relationship between this two kinds of crime as "imaginative joiner of offenses", or treating it as "overlap of articles of law" and dealing with it according to the principle of "heavier clause first"-are simple and easy to implement, but difficult to adopt, because these two solutions may lead to serious "crisises in dogmatics":the former ignores the fact that the legal interests protected by corruption crime and those protected by ordinary property crimes are identical, and blurs the boundary between "imaginative joiner of offenses" and "overlap of articles of law", whereas the latter confuses the quality element with the quantity element, undermines the unity of conduct classification, and even leads to new imbalance between crime and punishment within the same category of conduct. Therefore, we can only try the solution based on mutex, which insists that "embezzlement" is the only behavior type of the crime of corruption; that there is no concurrence relation between the crime of corruption and the crimes of theft and fraud in the first place; and that the behavior which is called "committing theft or fraud by taking advance of his or her position" only constitutes the crime of theft or fraud and has nothing to do with the crime of corruption. In this way, the problem of punishment imbalance arising from the concurrence between these two kinds of crimes can be easily solved. It can be argued that the solution based on mutex is tenable both from the perspective of the necessity of realizing the balance of penalty and from the perspective of systematic interpretation, reasoning behind legal provisions, literary interpretation or teleological interpretation. |
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