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Researching Of Perpetrator-by-means

Posted on:2006-06-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:X R ZhaoFull Text:PDF
GTID:1116360182465699Subject:Criminal Law
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The essence of 'perpetrator by means' is something about its principle, and in terms of its theory much problem and dispute originated from it. 'Perpetrator by means' is perpetrator by nature, which is common sense for many scholars. But there is some who is elaborating 'perpetrator by means', starts from the theory of accomplice, for example, on the topic of its maintenance ,they think crime by another's hand can't be an accomplice ,so it should be a 'perpetrator by means'. We think, it reflects an thinking method of 'un-accomplice' in 'perpetrator by means', which is the remnants of 'theory of compensation' and it result 'perpetrator by means' has an obscure position in the system of criminal law. The dissertation bases on the principle of perpetrator to define the independent position of 'perpetrator by means'. And it seeks the existence, the condition of its existence and the existing principle of 'perpetrator by means' from the theory of conduct. And it implements the idea of the crime- individually into all topic of 'perpetrator by means'. And it advocates the rejection of the logic of 'un-accomplice'.The theory of conduct is the foundation of the indirect conduct, according to which, one can produce an indirect conduct by his own willing, so direct and indirect behavior can all be conducts. There are two aspects condition for an indirect conduct to come out, on subjective aspect, man-backstage should has the capacity to control the indirect conduct, which lead the conduct to his willing and which can separate 'perpetrator by means' from accomplice ; on objective aspect, the premise of an indirect conduct is that the crime permit the separation of the subject and conduct, which separate it from perpetrator by own hand. In addition, 'perpetrator by means' is a crime committed by other's hand, in this case, it should be confirm in the sphere of other's direct hand.The conduct of 'perpetrator by means' include two acts, one is direct and the other is indirect. The direct conduct can not only bring about the indirect conduct, butalso hide the willing of man-backstage. The indirect conduct has the promise of endangering the profit safeguarded by law promptly, so ,usually, the direct conduct just prepare for the whole crime, and we should seek the start and finish of the perpetration in the indirect conduct. But there is exception, in some cases; the direct conduct can be recognized as the start of 'perpetrator by means', such as using a mental patient to crime. To understand this, the direct conduct also is the conduct with immediate relationship with the perpetration. 'Perpetrator by means', has two conduct, but it is not compound conduct crime, just direct preparation and indirect perpetration.When to decide some conduct is an 'perpetrator by means' or not, the standard is not 'accomplice secondary theory', nor the adoption of removing, which means when remove the accomplice, and the rest is 'perpetrator by means', but its subjective and objective characteristics, which means only when the 'perpetrator by means' is negated, that can define it to be an accomplice. As to the sphere of 'perpetrator by means', it is concluded in following case, 'perpetrator by means' is possible: exploit a conduct unable to control by its subject; exploit a conduct by an irresponsible man; and exploit a conduct which is legal; exploit an ignorant conduct; exploit a conduct with different intention; exploit a conduct without object but with intention; exploit a conduct without status but with intention.Besides, to confine 'perpetrator by means' properly, it is necessary to map the relationship between 'perpetrator by means' and perpetrator by hand, instigator and unilateral accomplice. As to perpetrator by hand, it is founded on the theory of the indivisibility between the subject and the conduct, so only when it permit the division we can decide it is a perpetrator by hand. According to this theory, crime in which movement is enough, crime in which status is not indispensable, crime impure inactive, all has no essential relationship with perpetrator by hand. But crime pure inactive, crime in which status is indispensable and crime in which object is indispensable are perpetrator by hand. From the relationship between the 'perpetrator by means' and the instigator, we can find a clue 'perpetrator by means' is going on theroad of independence from a gap concept. Now many scholars emphasis the substance meaning of 'perpetrator by means', such as the out-coming of theory of controlling and the theory of norm-obstruct. 'Perpetrator by means' is a crime individually, but instigator is an accomplice even sometime its has independent status, so there is a distinct difference between them. In addition, it doesn't include the 'perpetrator by means' in the Provision 29 in Criminal Law, which means it necessary to add a provision for 'perpetrator by means' in Law, in order to implement the principle of 'no crime and punishment, no law '. The difference between 'perpetrator by means' and the unilateral helper of the perpetrator mainly comes from the intention, for the former, it is intention to perpetrate, but for the latter, it is intention to help the perpetrator.
Keywords/Search Tags:conduct with exploiting, perpetrate indirectly, separation between the subject and conduct, crime individually
PDF Full Text Request
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