Implicated crime
The implicated crime (けんれんはん, - ぱん) means that the act that is the means of the crime or a result conflicts with other charges (criminal law Article 54 Clause 1 latter half). For example, trespassing (criminal law Article 130 preceding paragraph) and the theft (criminal law Article 235) become the implicated crime when they invade the house of another person and steal it.
About the implicated crime, I judge it by the heaviest punishment. In the example above, I will be judged by punishment of the heavy theft of the legal punishment, and there is not the thing judged by punishment of the trespassing separately (the principle of absorption). At this point discretionary penalty lightens than the concurrent offenses that the principle of weighting has stolen.
- The criminal law lists only the number of the articles in the following.
Table of contents
History
The rule of the implicated crime is hardly found in a legislation example except Japan. It is supposed that the Japanese current criminal law was established in reference to the Spanish criminal law [1]. Deletion was planned with the revised criminal law draft without there being it in the Korean criminal law to assume the Japanese current criminal law a law as the model.
Purpose
It deals with the implicated crime as the place where a number punishment is originally established, a course punishment top one punishment (judgment top one crime) (precedent, common view).
According to being admitted that it does not have to judge it as a number punishment anymore, the precedent does the punishment for the thereby light crime if I judge it with the punishment that I established about a crime heaviest soon when one usually carried out number punishments in the other means or the relations that I am connected and a criminal suffers from concretely to turn out in the nature of a crime between number punishments about the purpose if the crime purpose of the number of them punishment considers a single thing because it is custom that can fill up (Supreme Court December 21, 1948 judgment [2]).
Requirements
It is necessary to have close causal association among both and does an implicated crime so that it is an implicated crime because I say the act used as the means in a property commonly of a certain crime with "the means of the crime" to say to criminal law Article 54 Clause 1 latter half, and the precedent points to the proper result to produce than a certain crime as a result of "crime" again only by a 2 punishment being in a relation of the means result that a criminal violated practically by chance if there is not it (Supreme Court July 12, 1949 judgment [3]).
In addition, I understand the precedent without being enough so that an implicated crime is established only by it being said that a criminal carried out one side of the number punishment in the relations of the other means or the result subjectively that I need that relations of the means result usually exist in the nature of a crime between number punishments (forecited Supreme Court December 31, 1949 judgment [4]).
The precedent accepts an implicated crime about during forgery of documents and the use and fraud during a house invasion and theft, robbery, murder, rape, an injury, arson.
Iron clamp phenomenon
When plural crimes are derived from a crime to become one means and occur, as a whole, it is treated the result that means and the crime that it is and plural crimes to turn out stand for the relations of the implicated crime each as a one punishment. For example, three murder and one trespassing are judged by a result to become the implicated crime each, the punishment of the crime that, as a whole, is the heaviest as a one punishment when I invade the house and kill three people (Supreme Court May 27, 1954 decision [5]). Because it is a one punishment whereas it becomes the concurrent offenses if it is only three murder, and concurrent offenses weighting is done by trespassing playing a role of "the iron clamp", I say this with an iron clamp phenomenon.
This was planning to be recognized by a precedent, a common view, but there is the objection theory because disproportion that a range of the discretionary penalty rather lightens produces it by a crime to become the iron clamp being prosecuted and being authorized.
Discretionary penalty
"I judge it by the heaviest punishment", and the implicated crime is done, but understands it that the precedent includes the purpose that I cannot judge with a purpose to judge this rule by articles establishing the heaviest punishment in several charges more lightly than punishment of the minimum of other articles (Supreme Court April 14, 1953 judgment [6]).
Handling in the code of procedure
The implicated crime becomes the course punishment top one punishment like ideological competition and becomes the handling in the code of procedure like this.
Footnote
- 337 pages of ^ "great コンメンタール second edition" Vol. 4 (green wood study)
- ^ Supreme Court December 21, 1948 Supreme Court judgment (2,048 pages of three collection of punishment 12, precedent information).
- ^ Supreme Court July 12, 1949 Third Petty Bench judgment (1,237 pages of three collection of punishment 8, precedent information). Because the judgment could not say that the illegal imprisonment was usually means of the rape when it was usual, I did the illegality imprisonment and the rape resulting in injury punishment without it being with the implicated crime because I was in a relation of the means result by chance when it was concurrent offenses.
- Even if guns did the ^ judgment with a crime of the violation of possession prohibition saying that they could not necessarily admit that means or the result should be usually connected in the nature of a crime with the robbery and murder attempted crime that the defendant violated a means としてあいくちの illegal possession punishment of the robbery and murder attempted crime practice, I did it when I could not see it with an implicated crime only in the one instance.
- ^ Supreme Court May 27, 1954 First Petty Bench decision (741 pages of eight collection of punishment 5, precedent information).
- ^ Supreme Court April 14, 1953 Third Petty Bench judgment (850 pages of seven collection of punishment 4), precedent information).
Allied item
This article is taken from the Japanese Wikipedia Implicated crime
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