The Study On Indirect Principal

The indirect principal is a very important theory in the German and Japanese criminal law. With the development of society, more and more indirect principals are impacting the theory of our traditional criminal law. Because of the short of the indirect principal theory system, the justice practice which needs the instruction of criminal law theory always in the sea .So at the premise of keeping a foothold in traditional criminal law theory and obeying the principal of a legally prescribed punishment for a specified crime, there is no doubt that it is a difficult and important assignment to set up a systemic theory of indirect principal in the area of our criminal theory and justice practice. This article is drafted to beginning with the analyse of the concept of indirect principal to develop a deeper study of the difficulties and doubts from the special form of indirect principal, trying to establish a clear theory of each problem , to draw lessons for the lawmaking ,and supply derection to the justice . Except the introduction, this text is devided into seven chapters.The first part is the introduction, the author describes the background for the topic, introduces the status for researches in relation to domestic and overseas indirect principal and describes the research methods, creations and research values related to this paper in the introduction hereunder.The second part is chapter one, an overview of the indirect principal is described to illustrate. In the doctrine of the principal, the definition of indirect principal representation of committing described based on the analysis, the principal committing to adopt restrictions that define the indirect principal, in this article the concept of indirect principal to generalize the indirect achievement of the crime, non-accomplice nature, undertake the direct and independent criminal responsibility , as well as four distinct characteristics of dominance, and further indirect principal, the nature of the various doctrines of the assessment. The author gives the definition under the indirect principal, as well as indirectly committing the crime, identified as a special form of study in subsequent chapters of this paper provides an indirect principal based on the premise.The third part consists of chapter two, chapter three, chapter four and chapter five, special research on concrete question about indirect principal is done in this part.In chapter two, starting from the person and behavior being used, to sub-use people who has no obligation, the people who have non-intentional acts and the people who has intentional acts three cases, the author analyses and demonstrates the possible establishment maximum of an indirect principal. Demonstrated the people who use no obligation people t should constitute an indirect principal not an instigator; The use of other non-intentional acts of the three cases, namely, the use of others is neither intentional nor negligent acts, the use of others, but no intentional fault of the behavior and the use of another person without a specific intent crime, but for other crimes are intentional acts, the user may constitute indirect principal; The use of intentional acts of others, including two kinds of cases, should be a concrete analysis of specific situations, in which there is deliberate use of another person without the specific identity of the behavior should be the establishment of an indirect principal, while the use of another person without the specific purpose of intentional acts, if the specific purpose of the constituent elements of crime, then the user does not constitute a form of instigator but an indirect principal , if a particular purpose is not a crime constituent element but merely increases the responsibility element, then the user does not constitute an indirect principal .Chapter three is about the research for the restrictions on the establishment of an indirect principal, including personal crime and the status crime. On the base of the concept of personal crime, the author agrees with the implementation of the provisions of criminal law required by the implementation of the acts does not constitute an indirect principal. The status of this chapter only refers to convicted status , those who have the status instigate and help to implement pure status crime, those who have no status instigate and help the people in status but are not responsible for the implementation of pure status crime, after has elaborated the doctrines of indirect principal , the author considers that the status is mainly committed the breach of its obligations under the criminal law, those who has the status abet and help to implement a pure status crime , only means a change in the way of committing crime, not a change about the breach of obligations under the Criminal Code , so the author thinks they are all indirect principals; those who has no status to abet and help the people who has the status but not guilty the implement the pure status crime, for the lack of the status, who has no the specific obligations required, so those who has no the status can not constitute the status and constitute an indirect principal of the status crime.Chapter four is about the research on the act of perpetrating of the indirect principal behavior, in which indirect principal commencing is the focus of this chapter. Based on the doctrine of criminal law in the five kinds of behavior description and analysis of the behavior of the Penal Code, the author defines and summarized the meaning dominance, physical and social significance of dynamic and static behavior of three essential elements of criminal law. The act of perpetrating in criminal law must comply with specific conditions that constitute in the form and a variety of specific elements in the composition of the legal interests protected by the reality of risk in essence. Despite the act of perpetrating on the set theories summarized as an objective theory, the subjective theory and the compromise theory, but the three theories have obvious shortcomings. Since crime is a combination of subjective meaning and objective dangerous of behavior, commencing should be identified with the subjective meaning and the specific objective risk, at the same time, they are independent separately. The indirect principal is a crime by the available behavior and the behavior being used, based on different angles, it results in the use of behavior theory (subjective theory), behavior being used theory (objective theory) and individual theory (compromise theory). Based on the view that the commencing of the act of perpetrating should be proceed with the subjective meaning and the specific objective risks ,the author demonstrates the theory of behavior being used (objective theory) is rational theory. Based on similar reasons, the author demonstrates the theory of behavior being used is rational theory for indirect principal ending.Chapter five is about the recognizing errors of indirect principal. How to deal with the recognizing errors, there are the concrete coincidence theory, the abstractive coincidence theory and the statutory coincidence in foreign criminal law, the statutory coincidence has been accepted by most scholars and judicial precedents in Japan. The recognizing errors of indirect principal include the recognizing errors for user, recognizing errors misunderstanding for those whose behavior be used and those who begins to know the reality midway. The recognizing error for user refers to the user mistakes the nature of the people who be used as a tool, how to deal with the recognizing error, there are three theories, i.e., subjective theory, objective theory and compromise theory in civil law system, according to the concept of abettor indirect principal, the author has demonstrated the objective theory to be rational. The recognizing errors for those whose behavior be used includes excrescent execution, deficient execution and different execution, for the excrescent execution, the user doesn't undertake any intent responsibility of indirect principal because of the lack of intention, but maybe undertake negligence liability. If the deficient execution is only the content of the act or the violation result, the user should be the unaccomplished offender of indirect principal, if the content of the act and the result are both deficient, the user is preparatory crime of indirect principal for the former, the user is the unaccomplished offender of indirect principal for the latter. The different execution is divided into non-overlapping alienation and overlapping alienation, in non-overlapping alienation, the user is preparatory crime of indirect principal for the expected crime, and is innocent to the crime of alienation as a principle, but negligence liability does not be ruled out. Overlapping alienation includes the aggravation trend alienation and the lighten alienation, for the former, the user should take the liability for the lighten behavior as a preparatory crime of indirect principal, if has negligence for the aggravation behavior, should bear negligence liability; for the latter, the user should be punished as a felony unaccomplished offender of indirect principal. In this paper those who begins to know the reality midway refers to those who knows the reality after he has begun his behavior and he can cease to be used, based on his own criminal intent continues to finish his behavior. How to deal with this situation, there are three doctrines in civil law system, i.e., indirect principal theory, the unaccomplished offender of indirect principal theory and the abettor theory. In my opinion, if those who are used have implemented the main act, the user should be an unaccomplished offender of indirect principal, after having known this, those who are used continue to do so, the user should be an abettor, if those who are used have finish the behavior as much as the undone behavior, the more severer punishment can be selected from the unaccomplished offender of indirect principal and the abettor.Chapter six is about the difference between the indirect principal and the accomplice. Accomplice in this article refers to the accomplice in the narrow sense, i.e., the abettor and the accessory; the doctrines distinguishing between the principal and the accomplice include subjective theory, objective theory and the crime control theory. The crime control theory distinguish between the principal and the accomplice based on the doer's objective and subjective, because the crime is a comprehensive reflection of the objective and subjective, the crime control is a reasonable doctrine. The difference between the indirect principal ,the abettor and the one-side accomplice in crime constitute is mainly on the subject of crime, subjective elements, objective circumstances of a crime, The difference is also reflected in the stop form of crime, the accusation, criminal liability.Chapter seven is about the present situation of the indirect principal about the legislative and judicial. The present legislative and judicial situations in Germany, Japan, Korea, and Italy are introduced, the innocent agent system similar to the indirect principal in the Anglo-American legal systems is described, the differences and similarities are summarized at the same time. The relation between the indirect principal and the criminal law in Chinese mainland is sorted with a developing insight from the law history angle, the author suggests the concept of indirect principal should be introduced to china, demonstrates the necessity of indirect principal in legislation, and provides the mode Indirect on the indirect principal in Chinese mainland.