A few years ago，Qingdao Procuratorate received a case。The general plot is，There is a personal refusal fee after meals，When the boss is about to leave the restaurant, it is blocked by the boss; in order to escape，He picked up a wine bottle to hurt the boss (later by forensic identification of minor injuries); the boss immediately called the police，Police rushed to capture this person。The case is very simple，But how to qualitative has become a problem。During the review and prosecution stage，There are two opinions within the procuratorate: one is considered to constitute a conversion robbery，This means that the probability of torture is more than three years; another claim is based on the crime of provoking trouble，Significant plot，Can not prosecute。Different qualitative，There is a big gap in sentencing。

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Article 269 of the Criminal Law stipulates: "Theft、Scam、Crime of grabbing，Hidden the stolen goods for the nest、Anti -arrest or destruction evidence and use violence on the spot or threatened by violence，In accordance with the provisions of Article 263 of this Law, conviction and punishment。"" Strong eat overlord meals and use violence afterwards，It does seem to be in line with the constituent elements of the conversion robbery。However, in the eyes of many people，Strongly eat overhaur meals in advance，Still beating people afterwards and minor injuries，Not a serious illegal act，Public security management punishment is enough。The reason why the second opinion advocates the crime of provoking trouble，Obviously because the case handler is also the same -once it is qualitative to a conversion robbery，Setting torture from three years is too heavy。

During the judicial process, there will always be controversial cases，The law cannot do everything in the world。But this case has made me pay special attention to，Tell me intuition，Article 269 of the Criminal Law may have legislative errors -systematic differences in transformation robbery and ordinary robbery，I shouldn't have the same crime and punishment。Although the constituent elements of the two crimes are bet365 Play online games completely consistent，All are illegal to seek property plus violence，But the conversion robbery is different from ordinary robbery，The former has an obvious time boundary between illegal conspiracy and use of violence，This provides opportunities for the risk of controlling the victim's personal injury。That is to say，As long as the victim does not take resistance measures，His person is safe，Loss is just property; the victims of ordinary robbery will not be so lucky，He has no chance to control the risk of personal injury，Even if you choose to escape、October or abandon resistance，Still confident to ensure your personal safety。

If the conversion robbery is a kind of crime that is far safer than ordinary robbery，So only for this reason，Its legal punishment should be systematically light than ordinary robbery。Of course，This is just reasonable，How can I verify this reasoning? The judgment of the response is that it cannot be verified from the front，I can only think of a side verification method: if the conversion robbery is systematically lighter than ordinary robbery，Then the judge will respond in the sentencing session，To a certain extent, deviate from the same crime and punishment specified in Article 269 of the Criminal Law，Because the law cannot completely tame the moral intuition of judges。

A case cannot explain the problem，To verify the above reasoning，Need enough samples and meticulous quantitative research。My colleague Associate Professor Wang Yue is good at various data analysis。Wang Yue understood this demonstration logic，Work quickly，What she looks at China Judgment Document Network，This is currently the largest referee document database in China。Based on the population ratio of various provinces，She made a layered random sampling on the first trial of the two kinds of robbery，A total of 2603 samples are formed，Where，376 samples of conversion，Ordinary sample 2227。For our research，This number of samples is enough。Then，She uses a rough pairing analysis and regression analysis to handle these samples，The final statistical conclusion is very significant: under other circumstances that are roughly the same circumstances，The ordinary robbery of the conversion robbery ratio has decreased bet365 Play online games by 4.15 months in non -slow criminal cases。What does this conclusion show? Explain Article 269 of the Criminal Law encountered a certain judicial resistance。

So far，Empirical research itself provides a reason to suspect legislative errors，It has not yet proved that Article 269 of the Criminal Law is indeed a legislative error。Judicial resistance is just that this law is not performed perfectly，But maybe the wrong is the judge。Simply put，Empirical research just marked a red alert for this legal provision，and continue to exclude the possibility of "false positive" alarm，We still need further thinking。So another question surfaced: Assume that Article 269 of the Criminal Law is a legislative error，So what is the root cause of mistakes?

　　Going out of the morphological characteristics of traditional criminal law

Criminal Law will be converted to robbery with ordinary robbery，Based on the basic assumptions of a criminal law theory: if the key elements of two crimes are roughly the same，The criteria and corresponding punishment for the two crimes should be roughly the same。Is this assumption that there is no problem in itself? If the answer is no，Then our empirical research is more significant，The spear head of the research conclusion not only points to a specific legislative error，and further point to the traditional criminal law theory。

Of course，We cannot fully deny the assumptions of the theory of criminal law.，Otherwise, the entire criminal justice will have been completely messy for a long time。We can accumulate some of the congenital deficiencies at best，The probability of the assumption of error is high。The advantages and disadvantages of theory are in a comparative sense，We want to demonstrate that traditional criminal law theory is not satisfactory，It is necessary to come up with comparison objects。This means that we need to propose a set of competitive theories，and this set of theories must meet the following two conditions，At least one of them: First, the explanatory power is stronger，less errors than traditional criminal law theory; the second is simpler、easier to operate。

To respond to this theoretical challenge，We are based on the famous TFT rule in the theory of evolution.，By relaxing assumptions、Add variables，To a large extent, the moral intuition bet365 Play online games of human beings on the evaluation of crime is largely decoded，Then constructed a retribution model that can be relatively accurately described as adaptive。This model contains the possibility of crime、Success rate of crime、Actual loss of crime and probability of arrest。On the one hand，All concepts of criminal law theory can be restored to these four variables (we have made a simple retrieval); on the other hand,，Evaluate these variables，The quality of legal decision -making can be significantly optimized (we have also done a simple test)。So far，We have actually proposed a theory that can compete with traditional criminal law。

Go back，You can make a deeper explanation of the conclusions of empirical research。Compared with ordinary robbery，Conversion robbery presents systemic differences on the above indicators。First，Converted robbery is difficult to make again -even if potential criminals choose to continue the crime，It is also difficult to have conversion conditions at the same time，Therefore, the overall crime statistical frequency should be significantly lower than ordinary robbery。Next，Because the victim can actually determine whether the crime is transformed，Therefore, the probability of robbery should be lower than ordinary robbery。Last，Under the condition of the victim's opportunity to interfere with the crime process，The probability of detection of transformation and robbery will definitely be significantly higher than ordinary robbery。Integrity,，Even after the incident, it seems that the loss and robbery caused by specific conversion robbery are no different，It seems that it is also a lighter crime in advance。A problem that is puzzled in a traditional criminal law，Utilized in our theoretical framework。Although the success of an example cannot explain the success of a theoretical，But our research provides a path for repeated similar success，This shows that the research itself is open。

We can continue to ask，If there are defects in traditional criminal law theory，So where is the root of defects? While exploring a set of competitive theories，We also have to analyze its competitors -traditional criminal law theory and its crime and crime -make a deeper analysis。We found and demonstrated，The main bet365 Play online games method of traditional criminal law is to summarize the surface characteristics of different crimes，They are called constituent elements，Different requirements define different types of crime，Traditional criminal law has developed a set of methodology with the operational basis of identification elements。Although this method is effective -as long as the society is relatively stable，The requirements for defining a certain behavior mode will not be modified frequently，The entire knowledge system can look cleaner for hundreds of years -but because the innateness of the inductive law is not enough and inductive objects, it is just the surface feature of criminal behavior，Traditional Criminal Law Theory After all, it cannot get rid of the limitations of morphological thinking，The error of legal decision -making is inevitable。The error of the same crime and punishment is similar to mistakenly thinking that the dolphin is mistaken for fish。

other，The concept system of criminal law also needs to be cleaned。Although criminal law also relies on human moral intuition，But but failed to analyze the variables，It just created some descriptive concepts。Ru intention、Undales、Conspiracy、impulse、Purpose、Motivation、Crime plot、Harmability、Personal danger、Expect the concept of criminal law like possibilities，and philosophical concepts such as corrective justice and retribution，All belong to the vague expression of "knowing it but not knowing it"。These concepts cannot be measured，Not calculated，The troubles born from this are self -evident，Easy to form misjudgment，Communication and controversy lack efficiency。Replace these uncontrollable descriptive concepts for measurable variables，can to a large extent to alleviate the above problems，Therefore, the inherent limitations of morphological thinking are overcome。

　Empirical and theory overlap:Research from Eye Benefit

Given that the retribution model is more successful in decoding human moral intuition，We put forward the corresponding methodology proposition: get rid of morphological thinking，Shin from "Essentials recognition" to "variable assessment"。If there is no such methodological steering，We cannot find that cases that caused Bet365 lotto review violence caused by strong eating overlord meals are actually closer to snatch，Although it looks more like a robbery。It is even impossible to find that the conversion robbery is a kind of sin that is safer than ordinary robbery，Singing torture should be systematically lighter than ordinary robbery。

While theoretical exploration，Conclusion of Empirical Research — Article 269 of the Criminal Law encountered judicial resistance -also obtained a deeper explanation。Judicial resistance is the subconscious correction and rebound of the court's system for legislation errors，The moral intuition of the judges played the role of a buffer and even the firewall when sentencing。Of course, judges know how to know，Regardless of the law，Still according to the theory of law，Converted robbery should be punished with ordinary robbery; but after in -depth understanding of the case，Judge's moral intuition will be awakened by the details of the case。within the scope of the free tailor，It can play a role in legal provisions and legal theory。The law will not be thrown aside，But there are other factors that affect the judgment outside the law。From another angle，Legislative mistakes will generate additional costs like any errors，Even if it is only out of the need for controlling costs，Correction or weakening errors are inevitable options。Error is difficult to last，errors in legislation are difficult to continue in the judicial process。

During the entire research process，We deeply feel，Combining empirical research and theoretical exploration，Not only can it be complementary short and long，and can support each other，Then create a superposition effect。On the one hand，Empirical research can provide the foundation of discussion and analysis material for theoretical research，To a large extent overcome the "air -to -air" problem of theoretical research。On the other hand，Theoretical exploration can amplify the value of empirical research，In turn, you can also make more in -depth research conclusions、More comprehensive explanation。Although we admit，Even if empirical research and theoretical research are added together，It cannot be 100 % proved that Article 269 of the Criminal Law is a legislative error。

To complete this study，In the early stage of knowledge accumulation bet365 best casino games and thinking reserves indispensable，Inspiration only appears in the prepared mind。Although our writing order is empirical and then theory，But the order of thinking is crossing each other。If there is no theoretical intuition that has been formed for a long time,，It is impossible to find the fact itself，It is even more impossible to analyze those data。A lot of data and facts are placed there，It's like a mine -rich mine。Mine storage，It's not enough to rely on the eyes，Must have brain。Eye is so happy to complete the real valuable empirical research，If you have an eye, you can only turn a blind eye to see or ignore it。

　(the author is the dean of the School of Law of China Ocean University)