On The Duality Of An Accomplice

The term "Gongfan" in Chinese criminal jurisprudence could be understood in two ways. One is short for the joint-crime contrasting to the solo-crime, another is short for the abettors. Generally speaking, the latter is divided into the abettor from broad sense and narrow sense. The abettor from broad sense consists of the actors of joint-crime, fagin and auxiliary, while from narrow sense comprises the fagin and auxiliary that contrasting to the actors of joint-crime. The meaning of abettors adopted in the dissertation is the latter (following short for "the abettor").Joint-crime is the most difficult, tangly and depressed issue in the theory of penal law. Taking one with another, how to open out the characters of the abettors and solve the fagin and auxiliary's criminal liability scientifically are the most important issue in the theory of penal law. Basing on renewing the theory of act, we reconstruct the theory of act in joint-crime from the different view. At the same time, we also open out the characters of abettor scientifically and solve the abettor's criminal liability. Conclusion that we made in this dissertation is adapted for all actors in joint-crime although we emphasize on solving the abettor's criminal liability. The dissertation falls into two parts, which include eight chapters. The number of words is about 120, 000.The introduction to the dissertation introduces contemporary theory of the abettors, the significance of studying on the two-fold characters of abettors, the innovation of the dissertation and the methods adapted in the dissertation. Chapter I summarizes the disputes over the "characters of the abettors" and suggests how to overcome the shortcomings of the criminal theory home and abroad. As far as whether the abettor should be responsible for the criminal liability all by himself is considered, there are some disputes between the viewpoint that insists on abettor's character is unattached to the actors and the abettor's character is appurtenant to the actors in the criminal law theory of German and Japan. The scholar in China put forward that the Fagin has the two-fold attributes for conciliating the viewpoint that insists on abettor's character is unattached to the actors and the abettor's character is appurtenant to the actors early of 20th century. In our criminal law theory, there are also some disputes among the viewpoints that insist on abettor's character is unattached to the actors, the abettor's character is appurtenant to the actors and the Fagin has the two-fold characters. After disputing for the long time, scholars in German, Japan and China accepted the conclusion that the abettor's character is appurtenant to the actors because the abettor has no unattached action but appurtenant to the actors. However, the viewpoint that insists on abettor's character is unattached to the actors, the viewpoint that the abettor's character is appurtenant to the actors and the viewpoint that think the Fagin has the two-fold characters all face many embarrassments both in theory and practice. The viewpoint that thinks the abettor's character is appurtenant to the actors couldn't solve the abettor's criminal liability because he couldn't know the basic character of act in joint-crime. The viewpoint that insists on abettor's character is unattached to the actors also couldn't explain what the act is because he considered the joint-crime as all actors show their fatalness. The viewpoint that thinks the Fagin has the two-fold character, trying to conciliate the contradiction between the two viewpoints above, couldn't deal with the coherence between the two viewpoints above paragraphs. Thus, we think that misapprehending the essence of act and misconstruing the relationship between the subjective aspect and objective aspect of act make the theory of joint-crime in-being is in hot water. People always say that unveiling the innate-character of the act is the way to overcome the basic limitation of the joint-crime theory.ChapterⅡanalyzes the two-fold characters of abettors. Through unveiling the innate-character of the act and the act of joint-crime, we interpret the two-fold characters of the abettors. All facts of human being's society have proved that human being's behavior must utilize all external conditions to extend his own "hand". Therefore, human being's behavior consist of the all external conditions that he has utilized. Human being always realizes his goal by manipulating some external conditions. For example, if one want to kill someone else, he/she always use the knife or other tools. It is this character owned by human being that the differentiated human being from the other lower animal. Manipulating some external conditions is also the basic form of the act in the theory of criminal law.So, on the one hand, the abettors manipulate the act each other just as manipulating some external conditions. One abettor's act is the part of the act of others. Each abettor has his/her own act because other abettor's act is the part of his/her act. Thus, we can make conclusion that each abettor is responsible for his/her unattached act. He/she should also be responsible for the results caused by all abettors' acts. This means that the abettor is unattached.On another hand, joint crime is a kind of crime committed by abettors intently. Therefore, the abettors' act are interdependent. The results caused by each abettor's act. So we must consider influence of other abettor's act on the results when ascertaining one abettor's criminal liability. This shows the abettor's another character. The abettor's character is appurtenant each other.Two characters of the abettor are not the same and equal. According to the analysis above, we think that abettor is unattached each other firstly, while the abettor is appurtenant secondly. Concretely speaking, the relationship between the two-fold characters of abettor is just as the relationship between the skin and fur on it. Without the abettor being unattached to each other firstly, without the abettor being appurtenant to each other secondly. The first character is the basic form of the abettor's act. It is the first character that symbolizes the existence of the abettors.We also think that abettor has the two-fold characters which the abettors are unattached and appurtenant each other. According to the Chinese Character Dictionary, the word appurtenant could be interpreted into compliableness or appertain. Accordingly, appurtenant to another is the character. Generally speaking, the viewpoint that abettor's character is appurtenant to the actors in the existing criminal theory means that abettor's existing and criminal liability decided by the actor. However, we adhere to the viewpoint that the abettors are appurtenant each other. So it is very important for us to distinguish between the two above meanings.ChapterⅢdeals with the basis of the crimination. Through studying on the relationship between the subjective aspect and objective aspect, we deal with the basis of the crimination. Joint crime is a kind of crime committed by abettors intently according to our criminal law. During the crime committed intently, the abettor always manipulate his/her own act basing on his/her cognition including the virtue of the act. So, one abettor manipulates the act of other abettor that can be cognized by himself as the external conditions. This is the premise that the abettor's act will be a part of other abettor's act. Logically, one abettor's act can be cognized and manipulated by the another abettor. In other words, only the act that can be cognized and manipulated by the abettor's trespass will be the part of his/her own act. Accordingly, the character of abettor's act is decided by abettor's trespass. It also shows that the character of acts of joint-crime is not decided by itself but the trespass. "The important subjective element of act is the mentation to manipulate the whole crime.......Manipulated by the important subjective element of act, the character of the crime is also decided by the content of the trespass. The crime is the duration that actor changes his/her content of the trespass into the harmful results. In other words, objective aspect of crime is the realization and extension of content of the trespass. Thus, content of the trespass decided the character of the crime." This is the premise to unite the subjective aspect with objective aspect of act. So the abettor's criminal liability is decided by content of the trespass. It is very important to stress that we make conclusion above paragraphs according to joint-crime in the existing criminal law. However, it doesn't mean that the conclusion above paragraphs is adapted for the joint-crime intently. From the view the legislation, it is adapted for all the forms of crime. Of course, the dissertation can't deal with these issues. We hope solve these issues in another paper. At the same time, we also discuss the deviation of joint-crime. In fact, the deviation of joint-crime is the issues of culpability. According to the criminal law of China, the people deviated the culpability of joint-crime should be responsible for his/her act. However, we suggest that the others should be responsible for the act for his/her negligence.Chapter studies on the difficulties of the theory of criminal law in-being. We want to solve the difficulties of coconspirators.Chapter V deals with the sentence of the actors and the classification of actors in joint-crime. We set up the standard of sentence and the classification of actors in joint-crime. Measuring the penalty is the process to decide the criminal liability according to the law. Just as we know, we must make comparisons of effects between the all conditions that cause the harmful results. For example, only compare the effect of actors committed crime simultaneously can we decide each actor's criminal liability. So does the crime committed rashly at the same time. The abettors' act is interdependent. The results caused by each abettor's act. So we must consider influence of other abettor's act on the results when ascertaining one abettor's criminal liability. This is the standard to measure the penalty. It is not only necessary to measure penalty individually but also the premise to measure penalty scientifically. Just as our criminal, measure the penalty according to the effect of actors in harmful results do not refuse to considering the other circumstances. Therefore, according to the effect of actors in harmful results, we divided the all actors into two category. One is the actor that mainly causes the harmful effects, which includes the principal and part of fagin in existing criminal law, another is the less important effect, which includes accessory in existing criminal law. Thus, we divide the actors into two categories according the different effects. One is the principal which includes the actor as organizers and the Fagin who play important role of joint-crime, another is the abettors which includes the Fagin who play less important role of joint-crime. Ii is simple and scientific for this standard of classification.It's necessary for me to explain that the sixth and seventh chapter of the dissertation is a wretched sequel to a fine work. Considering that there are no stipulations about " Abettors and their status" and "Stop halfway of the joint-crime", and that it is the further explanation of the viewpoints in the dissertation, we keep two chapters above paragraphs for the form of dissertation. We think, while resolving " abettors and their status " must know the " status " is also one kind of the conditions that man can make use of. This is the further explanation innate—character of acts in this dissertation. According to this, we definitely put forward principle that handles "abettors and their status". By studying on the stop halfway of the joint-crime, we emphasize the stop halfway of the joint-crime can be applicable to the person in practice, and put forward principle that handles " Stop halfway of the joint-crime"As the summarization, the last chapter point out the innovation of the dissertation。The theory of criminal law in-being and the criminal law generally accepted the "Viewpoint that the abettors is subsidiary to each other", which insists that the abettors is subsidiary to the actors who committed the crime. The dissertation starts from the unattached act and culpability and end with finding out the "Two-fold characters of abettors". We think that one abettor's act is a part of act of other abettor. Thereby, the abettors obtain the unattached act. The culpability is the standard of the crimination. The abettors should be sentenced by his/her effect in the harmful results. Here, the conclusions we made in the dissertation should adapt for the all actors of joint-crime.Part TwoAuthor indicates the citations in "Model character". I hope that the experts and scholars give me some suggestions on the citations. The end of each chapter has a summarization, which is a connecting link between the preceding and the following. I also hope summarizations can be convenient for mastering. At the same time, it's necessary to indicate that the dissertation do not deal with the issues on the attempt of joint-crime, number of crime and other issues related to the joint-crime in criminal law theory. I'll study on these issues when consummating the dissertation.Last, but not least, I'm sure that there are many careless omissions and shortcomings. I sincerely hope that all readers could table your proposals. Thank you very much!...