Study On The System Of Joint Crime

According to the demand of nullum crimen sine lege, whichever crime should be punished only by a prescribed clause of criminal law. Under this circumstances, the focus of research on joint crime is how to find the link point between the fact of several persons participate in one crime and constitutive elements stipulated by the criminal law. On the contrary, the existed criminal law of our country sets too much character of liability to the theory of crime, which should be considered in the procedure of adjudication in fact, and the result is that the system of joint crime was led to chaos, and surges great difficulty in the process of academic research and judicial practice. The article maintains that the solution of this problem is returning to the doctrine of actus reus, and advocates to construct a brand new system of joint crime based on the concept of Taterschaft. The article can be divided into 5 chapters:Chapter 1 is the approximation of joint crime. Firstly, the author analyzes the broad and narrow sense of Taterschaft and Beilnahme after a brief history review, and points out that the notion of Taterschaft is the person who shares the position of domination in any offence and fulfills the constitutive elements stipulated by the criminal law by himself. In another aspect, Beilnahme is the person who can not utilize his bodily behavior to realize the constitutive elements and only can do that indirectly by his mens rea of organizing, instigating and assisting which auxiliary to the action of Taterschaft. Furthermore, under the basic theory of joint crime of continent legal system, the author holds out that should establish a system of joint crime which based on the division of Taterschaft and Beilnahme. After that, the paper construct a project of studying on the reconstruction system of joint crime in China which should follow the road of causation and the criterion of actus reus domination.Chapter 2 is the research on the essential construction of joint crime, which focus on the situation of legal sequence broken down by several persons simultaneously, and how to define the relationship of those people. First, the paper points out the theory of part co-crime should be established to find what is the common point among the actions practiced by these criminals. Furthermore, the paper analyzes the relationship of Taterschaft and Beilnahme, and advocates that Beilnahme is subordinate to Taterschaft. And to the extent of subordination, the restrained subordination doctrine should be established. At the same time , according to the 2nd paragraph of article 29 of Criminal Law of China, the instigator shares the character of dependency actually, but the sound choice is to change it to the character of restrained subordination instead. Finally, on the classification of joint criminals, the criterion should be changed from function to action also, which can divide the joint criminals into Taterschaft and Beilnahme, and Taterschaft includes indirect guilt and co-anteurs, and the latter includes gang organizer, instigator and accessory.Chapter 3 is the research on the modes of joint criminals. Firstly, after analyzing the meaning and character of co-anteurs, the author holds out that the institution of gang organizer need to be utilized to punish the important person who stands behind the crime practice. And after discussing the relationship between indirect guilt and the doctrine of subordination, the paper mainly analyze three special questions about indirect guilt, such as the practicing time of it, the distinction of Eigenhandige Delikte and instigator with it. Furthermore, through the historic investigation of gang organizer, the article talks about its legal status and constitutive elements. Also, under the doctrine of subordination, the paper discusses the concept and content of instigator, besides, analyses the question of dependent instigation. After that, the paper briefly analyzes the substance of accessory, which including the value of dependent assistant crime, and the problem of value-free assistant action in common life. At last, on the basic of punishment of Beilnahme, the author thinks that foundation lies in the relationship of Beilnahme and the constitutive elements provided by criminal law and the result that the action had demerit the interest which the law protected.Chapter 4 is the study on the revised form of joint crime. The article points out that one-sided accomplice only exists in the situation of one-sided co-anteurs and accessory. And in the interior of one-sided accessory, the non-form accessory should be maintained, and after the constitutive action has been practiced the one-sided accessory is advocates also. Secondly, the author makes a full study about the crime of concurrent negligence, and holds out that co-anteurs and accessory are set up in the circumstances of concurrent negligence. Besides that, the paper analyses the content of the crime of co-omission, and finds out that the co-anteurs and accessory can be maintained in this situation.Chapter 5 is the research on the intersect form of joint crime. First of all, according to the theory of statutory conformation, the author discusses the situation of fact fault among joint criminals, which after the short analyses of legal fault. Moreover, the paper probes into some difficult situations at the time of withdraw, and after a full investigating of the solutions towards it, the article make a rather prudent judgment about it in details. Besides, the paper analyzes the question of joint criminals and status demanded by the stipulated law, which mainly can be divided into standard status crime and non-standard status crime...