Approach To The Discontinuance Of Joint Crimes

Since our Penal Code doesn’t definitely regulate the discontinuance of joint crimes, in our criminal theorists and the practical realm there are disputes about how to determine the discontinuance of joint crimes. This article launches the research closely around the core proposition of constitutive requirements and judicial determination of the discontinuance of joint crimes. First introduces the legislative outline, concept and disputes of the discontinuance of joint crimes; second researches on the punishment basis of complicity, then according to the particularity of the discontinuance of joint crimes researches on the constitutive requirements of the discontinuance of joint crimes and the determination of desistance of all kinds of complicities; last researches on the separation of complicity relations which is related to the the discontinuance of joint crimes. Besides the introduction, the full text is divided into five chapters.The first chapter is introduction of the discontinuance of joint crimes. Firstly, this chapter introduces legislative stipulation of the discontinuance of joint crimes in domestic and foreign criminal law and concept of the discontinuance of joint crimes in criminal theory. And points out the discontinuance of joint crimes is one of the incomplete criminal pattern which means that in the process of joint offense all or part of the joint offenders give up the crime automatically or prevent the occurrence of the accomplished consequence automatically and effectively. Secondly, this chapter introduces and evaluates the disputes of the discontinuance of joint crimes in domestic and foreign criminal theory.The second chapter is punishment basis of the discontinuance of joint crimes. This article firstly introduces and evaluates the different theories of punishment basis of the discontinuance of joint crimes. It should adopt the division of labor classification and the general concept of accomplice, and carry on a whole inspection of the punishment basis of co-executor and the narrow accomplice, and explain punishment basis of general accomplice according to principle of correspondence between subjectivity and objectivity. Punishment basis of complicity has material effect to the determination standard of the discontinuance of joint crimes. Secondly, researches on the punishment basis of mitigating and annulling the discontinued criminal which should be explained according to the synthesis which is based on the criminal policy theory. The punishment basis of mitigating and annulling the discontinued criminal plays influential role to determine the constitutive requirements of the discontinuance of joint crimes.The third chapter is constitutive requirements of the discontinuance of joint crimes. This chapter firstly researches on the objective requirements of the discontinuance of joint crimes and holds that time requirement, discontinued act and effective requirement compose the objective requirements. It doesn’t need the causal relation between the discontinued act and not occurring the accomplished consequence. In the situation that asserting consequence has happened, it can constitute discontinuance of crime if part of joint offenders have relieved relations with other joint offenders automatically. Secondly this chapter researches on subjective requirements of discontinuance of joint crimes. It should adopt compromise theory to judge if actor has automatism, that is to say, on the basis of cognition to objective fact and taking average person’s cognition as the reference to determine the result of cognition to objective fact and further draws the conclusion whether the actor has automatism:"when the actor can reach his goal, but not want to" there exists automatism; "when the actor wants to reach his goal, but can’t" there isn’t automatism.The fourth chapter is the determination of discontinuance of joint crimes. This chapter researches the determination of the discontinuance of all kinds of accomplice types. (1) The determination of the discontinuance of organizing offender. Discontinuance requirements of organizing offender are different along with the difference of complicity pattern and development phase. As far as the organizing offender in the criminal gang speaking, during the planning for establishing a criminal gang or during the establishing for a criminal gang, so long as they give up the act of planning or the act of establishing automatically, can they constitute the desistance of crime; After the criminal gang is established and before the executors perpetrate, only when they dismiss the criminal gang or accuse to the related institution, can they constitute the discontinuance of crime; After the executors perpetrate, only when they prevent the gang members from continuing to perpetrate or prevent the occurrence of the accomplished consequence, can they constitute the discontinuance of crime. As far as the organizing offender in the general complicity speaking, besides giving up their own organizing act automatically, in order to constitute the discontinuance of crime they need prevent the others from continuing to perpetrate or prevent the occurrence of the accomplished consequence. (2) The determination of the discontinuance of abettor. Beginning to perpetrate is not necessary for the constitution of abettor discontinuance, but only after the abettor and the abetted have formed the complicity relations, there is the leeway to constitute the discontinuance of crime. It should take the theory of subordinateness of abettor as the foundation, and take the standard of abetted’s act as the standard of abettor discontinuance. When the abettor prevents the criminal act of the abetted effectively, the discontinuance of abettor is constituted. Meanwhile, when abettor has relieved the complicity relations with the abetted automatically, abettor also constitutes the discontinuance of crime, even if the abettor has accomplished the crime. (3) The determination of the discontinuance of executor. The discontinuance of executor is divided into co-perpetrator’s discontinuance and solitary perpetrator’s desistance. Only when co-perpetrators prevent the occurrence of accomplished consequence, can they constitute the discontinuance of crime. But when part of joint offenders’ discontinued act eliminates the complicity relations with the others, can they constitute the discontinuance of crime. As far as solitary perpetrator’s discontinuance of crime speaking, the actor should constitute the discontinuance of crime when he gives up the crime automatically or prevents the occurrence of the accomplished consequence automatically and effectively. His implemented effect doesn’t reach to organizing offender, abettor and accessory. (4) The determination of the discontinuance of accessory. It should take the theory of subordinateness of accessory as the foundation, and take the standard of executor’s act as the standard of accessory discontinuance. In the situation of providing the psychological help, as long as the accessory automatically gives up the intent to help the crime and persuades the executor to give up the criminal intent, can the accessory constitute the discontinuance of crime. In the situation of providing physical help, when the physical help has not been used, the accessory can constitute the discontinuance of crime as long as he withdraws the provided help; when the physical help is being used or has been used, only when the accessory prevents the executor from continuing to perpetrate with the help or eliminates the danger of occurring the accomplished consequence which has been arisen by his own help act, can the accessory constitute the discontinuance of crime.The fifth chapter is separation of complicity relations. Separation of complicity relations means the situation that during the complicity part of joint offenders withdraw from the complicity relations while the others still continue to perpetrate and reach to accomplishment. The theory of separation of complicity relations mainly resolves the problems that which responsibility the seceder should undertake for the act before the separation and that after the separation whether the seceder should undertake the responsibility of others’act and consequence. This chapter firstly introduces the basic theories of the separation of complicity relations, and points out that the separation of complicity relations is an independent theory which is in the different level with the theory of discontinued criminal. Discontinuance of joint crimes is one of the special type of the separation of complicity relations, the latter’s constitution is the premise to constitute the desistance of complicity and the latter is also the lower limit of application of discontinued criminal stipulation. When part of joint offenders automatically separate from the complicity relations, it should constitute the desistance of crime. Secondly after introducing and evaluating the theories of separation of complicity relations and the constitutive requirements of separation of complicity relations around the world, this article draws the conclusion that the standard to judge the separation of complicity relations is to relieve the existed complicity relations. Specifically speaking it should be from two aspects to judge whether part of joint offenders has separated from the complicity relations. First of which is whether part of joint offenders has the separated act; second of which is whether other joint offenders has realized the separated act. Lastly this chapter researches the specific determination of all kinds of the separation of complicity relations. (1) The determination of organizing offender’s relations separation. Before the executors start to perpetrate, only when the organizing offender eliminates the influence to the other accomplices which has been aroused by his organizing act and relieves the complicity relations with the other accomplices, can he constitute the relations separation. After the executors have started to perpetrate, only when the organizing offender has taken measures to prevent the other accomplices from continuing to perpetrate or has prevented the occurrence of the accomplished consequence, can he constitute the relations separation. (2) The determination of abettor’s relations separation. Before the abetted starts to perpetrate, as long as the abettor withdraws the instigation and eliminates the intent of the abetted, can he constitute the relations separation. After the abetted starts to perpetrate, only when the abettor has taken measures to prevent the abetted from continuing to perpetrate or has prevented the occurrence of the accomplished consequence, can he constitute the relations separation. (3) The determination of co-executor’s relations separation. In order to constitute the relations separation, part of the co-executors must explicitly indicate the intent of separation and take effective measures to eliminate the influence of his own former act which occurs to the accomplished result. (4) The determination of accessory’s relations separation. In the situation of providing the psychological help, as long as the accessory informs the intent of separation or persuades the executor to give up the criminal intent, can the accessory constitute the relations separation. In the situation of providing physical help, when the physical help has not been used, the accessory can constitute the relations separation as long as he withdraws the provided help; when the physical help is being used or has been used, only when the accessory prevents the executor from continuing to perpetrate with the help or eliminates the danger of occurring the accomplished consequence which has been arisen by his own help act, can the accessory constitute the relations separation.