Study On The Joint Perpetrators

Though the joint perpetrator is a relatively small problem in criminal law, it is also a more important one. Its in-depth research, whether it is the deepening of the theory of criminal law, or to meet the needs of the practice of criminal justice, is of great significance. This article includes five parts: preface, the conspectus of the joint offence system in Chinese and foreign criminal law, the basic theory of the joint perpetrator, debatable types of the joint perpetrator, and some other questions of the joint perpetrator.Preface, as the first part of the thesis, is mainly on the brief analysis of the concept of the joint perpetrator and joint principal offender, and explains the significance of the topics and research methods.The second part of the thesis , the conspectus of the joint offence system in Chinese and foreign criminal law , investigates the joint crime system in Chinese and foreign criminal law.It includes two sections.The first section of the second part mainly studies the system of joint offence in the continental law countries: the single principal offender system and the principal-accomplice differing system. Through investigation, as far as the system of joint offence of the continental law countries is concerned, both the single principal offender system and the principal-accomplice differing system are established to solve the problem of premise of the punishment. In this point, the single principal offender system approach does not make differences between different types of involvement in joint offence, and so all those involved in the joint offence share the same premise of punishment, which is stipulated sentence by the elements of the criminal law. As to the principal-accomplice differing system approach, the joint offence is divided into principal offender and accomplice, and each applies different premise of punishment. the principal offender is punished in accordance with the stipulated sentence in the elements of criminal law, abettor`s sentence is carried out as the principal offender `s penalty. Accessories` sentence is mitigated on the foundation of the principal offender `s penalty. Compared the single principal offender system with the principal-accomplice differing system, in contrast with the principal-accomplice differing system, though the single principal offender system avoids the problem of differing different types of joint offence, the problems such as difficulty to realize the compatibility of crime and penalty and the excess of judicial discretion power. The principal-accomplice system, though has difficulty in distinguishing between principal offender and accomplice, contributes to the compatibility of crime and penalty and to define judicial discretion power. From a comparative view, the principal-accomplice system is more reasonable. From the point of single principal offender system, the concept of joint perpetrator is meaningless, but under the principal-accomplice differing system, the meaning of joint perpetrator is of great significance.The second section of the second part of this thesis mainly studies the joint offence system stipulated in our criminal law. Through investigation, the author proposes that according to our criminal law provisions on joint offence, from a normative point of view, we did not explicitly adopt the single principal offender system, and nor the principal-accomplice system as well. But if study from a virtually view, the joint offence system stipulated by our criminal law provisions could be both corresponded with both the single principal offender system, and the principal-accomplice system. In this regard, the theory of China's criminal law in fact incline to the single principal offender system. Based on the reasonableness of the principal-accomplice system compared with the single principal offender system, the author did not follow the conspectus of Chinese criminal law theory in this paper, and read the joint offence system stipulated in Chinese criminal law in a way that is corresponded with the principal-accomplice system. So the author made a functional transformation on the principle of punishment of accomplice stipulated by Chinese criminal law, and a typification on accomplice stipulated in Chinese criminal law, and so the concept of joint perpetrator can play an very important role in Chinese criminal law.The third part of the thesis mainly investigated the basic theory of joint perpetrator. It includes four sections.The first section of the third part mainly made an investigation on the concept and nature of joint perpetrator. Through the study, this paper argues that, as to the concept of joint perpetrator, as a form of offence, joint perpetrator means: more than two actors, based on common criminal plan and determination, participate in the implementation of the behavior of elements of crime at the implementation stage of crime, and play an indispensable function in the implementation of elements of crime. As a perpetrator, joint perpetrator means the one who participates in the implementation of the common crime. We can also call it joint exercisers. As far as the nature of the joint perpetrator is concerned, joint perpetrator is a mid-type between principal offender and accomplices, and its characteristic resembles them both.The second section of the third part mainly studies the foundations of punishment on joint perpetrator. After investigation, the author suggests that as to the foundation of punishment of joint perpetrator, its pro forma foundation is China's Criminal Law Article 25 of joint offence and Article 26 of the provisions of the perpetrators. As to the substantial foundation of punishment of joint perpetrator, which is the nomological foundation of punishment principle of full responsibility of partial conducts, from the doctrine of causal complicity, it remains in the psychological or physical relationship between each accomplices and the whole practical behavior and its results of legal infringement. From the point of the intrinsical"common relationship"of the joint perpetrator, it remains in the relationship of mutual utilizing and supplementing between each accomplices.The third section of the third part mainly investigates the nature of joint perpetrator. Centered on the problem of the nature of the joint perpetrator, former conflicts mainly laid between the doctrine of complete joint offence and the doctrine of subjectivist common behavior, but now lie between the doctrine of partial joint offence and the doctrine of elemental behavioral intercommunity. According to the joint perpetrator system stipulated in Chinese criminal law and current condition of Chinese judicial practice, the thesis temporarily adopts the doctrine of partial joint offence.The fourth section of the third part mainly studies the tenability of joint perpetrator. Through investigation, the paper believes that the joint perpetrator can be tenable if only deliberately offence be committed on subjective, and joint criminal actions be implemented on objective.The fourth part of the thesis, mainly about the controversial forms of joint perpetrator, investigated the debatable forms of joint perpetrator. It included six sections.The first section of the fourth part mainly studies partial joint perpetrator. After investigation, the author believes that, based on the substantial demands of the doctrine of"complete responsibility of partial behavior"of joint perpetrator and the nature of the accessories, the concept of partial joint perpetrator should be denied, yet the idea of partial accessory should be affirmed. Therefore, this thesis believes that the so-called partial joint perpetrator problem could be considered as single perpetrator or partial accessory on condition that it is deemed as single perpetrator or not.The second section of the fourth part mainly investigates successive joint perpetrator. Through the study, this paper argues that the so-called successive joint perpetrator problem mainly includes two aspects. The first is whether the latter is to be responsible for the results of the former`s acts, the second is whether the latter can be considered as joint perpetrator according to the former`s behavior. On the first question the paper`s position is negative and on the second positive.The third section of the fourth part mainly studies the problem of"fault joint perpetrator". After investigation this thesis argues that the concept of"fault joint perpetrator"can be theoretically accepted, yet the interpretation has no need to exist both theoretically or practically. The author inclines to deal the problem of"fault joint perpetrator"with the thought of fault simultaneous crime extinction.The fourth section of the fourth part mainly studies the joint perpetrator of aggravated offense by circumstances. After investigation this thesis believes that as to the nature of the typical aggravated offense by circumstances, it is virtually a compound form of deliberate commitment of basic crime and fault aggravated offense by circumstances. Therefore the problem of the joint perpetrator of aggravated offense by circumstances is whether or not to affirm the joint perpetrator of aggravated offense by circumstances, and is virtually a problem of whether or not to affirm fault joint perpetrator. Therefore this thesis inclines to treat it as fault joint perpetrator.The fifth section of the fourth part mainly studies conspired joint perpetrator. After investigation, this thesis argues that the idea of conspired joint perpetrator is virtually a concept in order to make up the deficiency of the German and Japanese joint perpetrator system. Theoretically, the concept is irrational. In view of the joint perpetrator system stipulated by Chinese criminal law, this thesis holds a negative position on the concept of conspired joint perpetrator.The sixth section of the fourth part mainly studies the joint perpetrator of omission. After investigation, this thesis argues that the concept of the joint perpetrator among omission could be accepted if only legal infringement occurs due to common omission. We can distinguish joint perpetrator of omission on condition that there is a paralleled evaluation between omission and act.The fifth part of the thesis is about some other questions of the joint perpetrator. It mainly studies joint perpetrator and crime stopping patterns, joint perpetrator and identity, joint perpetrator and error, and etc.