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Research On The Abettor

Posted on:2016-01-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:B TanFull Text:PDF
GTID:1316330512954458Subject:Law
Abstract/Summary:PDF Full Text Request
Abettor is a legal concept of the Principal and Accomplice Offender System. This System, which is represented by Germany, Japan and other countries, is based on the concept of the limited perpetrator. It differentiates all the offenders to two different parts, Principals and Accomplices, on the level of coinciding the constitution elements of a crime. The abettor belongs to the accomplice. On German and Japanese criminal law theory, the study on the theory of accomplice always takes the abettor as example, thus abettor theory is formed which includes the abettor's basis of the punishment, the abettor's character, the abettor's constitution and so on. However, disputes on the content of the theory above appear, and almost every tiny problems have different views. Although our country's criminal law theory is born from the former Soviet Union criminal law theory, but in the past 20 years it has been deeply influenced by German and Japanese criminal law theory. So the recent studies on the abettor theory always take the same path as the German and Japanese criminal law theory's. But on the breadth and depth of the abettor theory, there is a big gap between our studies and German and Japanese studies. Also there is no consensus on some specific problems of abettor theory.In Anglo-American law system and Unitary Principal Offender System there is no legal concept of abettor. In Anglo-American law system, the offenders who commit in the way of abetting others to crime will be convicted guilty of incitement or will be dealt with as accessories of some convicted crime., based on the abetted people whether actually execute the abetted offense. The theories and the cases of handling the abettors in Anglo-American law system can also be consulted by us. In Unitary Principal Offender System, all the persons who have causal relationship with the criminal consequences are defined as principals. All the principals including the abettors are treated as simple perpetrators when determined whether convicted crime and adjudicated the punishment. So it can not formed the same subtle and complex theoretical system on abettor as the Principal and Accomplice Offender System's, but the way of thinking in this system is very simple and clear, which is the advantage can be consulted by us when we study the problems of the abettor theory. As some scholars have pointed out, the joint offense system of our criminal law should be understood as a Unitary Principal Offender System, therefore using the thinking method of Unitary Principal Offender System to study the abettor theory, is a kind of beneficial attempt. For these reasons, in this article the author discusses the problems of abettor theory in Chinese criminal law mainly referring to the relevant theories of German and Japanese criminal law. And at the same time the legislations and the theories about the incitements and the accessories in Anglo-American law system are also inspected at the aim of the reference to the problem's resolving on abettors in Chinese criminal law. In addition, the author also tried to give some interpretations and explanations to the disputed problems of abettor theory in China, by using the thinking way of Unitary Principal Offender System, in order to give another choice of the solution about the problem mentioned above.There are five chapters in this paper besides the introduction.The first chapter is about the nature of abettor. In Principal and Accomplice Offender System, the nature of abettor is about the character of independence and the character of dependency, the opposite focus of the theories mentioned above is whether the abettor is guilty without the execute behavior by the abetted people. The main contents are followings:1, A brief introduction are given which is about the relevant legislations on abettors in Anglo-American law system and the basic characters of the Unitary Principal Offender System, and the nature of abettor in these two legal systems are discussed. The emphasis is on the nature of abettor in Chinese criminal law and the perspective of the research is from the Unitary Principal Offender System.2, All the opinions about the character of independence and the character of dependency of abettor in Principal and Accomplice Offender System are commented, and emphasis is put on the disputes of the theory about the elements'dependency.3, All the opinions about the character of abettor in Chinese criminal law theory have been commented, and the author's opinion on this topic is also put forward.The second chapter is about the constitution of abettor.1,The different opinions about the constitution of abettor have been commented, and according to the criminal law of China, it is concluded that the opinion of "two elements" on this topic should be held.2, The paper discusses the basic content of objective behavior of the abettor, mainly about the upper and lower limit of instigating strength, and whether the person can be a abettor by abetting someone who has mens rea already or by the way of omission.3, The paper discusses the basic content of the intention of abettor, commented the disputed opinions around the above topic in Anglo-American law system, and also discussed the controversy of "double intention" and "single intention" in German and Japanese theory. The problems on the one-sided abetment, inchoate abetment and entrapment were mainly analyzed.4, The paper discussed the basic content of the instigated person's act of perpetrating, mainly about the disputes about whether the person can be a abettor if the instigated person just prepare to execute a crime, and about the disputes on the causation of the abettor. Also the paper analyzes and refutes the opinion of negating the accomplice's dependency to the perpetrator's intention.The third chapter is about the unfinished form of crime of instigation.1, All the opinions about the nature of instigating behavior in German, Japanese and Chinese criminal law theory have been commented, and the author concluded that the instigating behavior should be defined as the perpetrator's behavior by referring to the way of thinking in Unitary Principal Offender System. And after the above topic, the problem about the initiation of instigating behavior has been discussed.2, The author discusses the subjective and objective elements of unsuccessful abettor which is regulated at article 30 in Germany criminal law,and commented all the opinions on the Article 29, Paragraph 2 in Chinese criminal law, and drew some conclusions about the appliance scope of Article 29 and the form of the abettor in Article 29, Paragraph 2.3, All the opinions and regulations about the discontinued abettor in German Japanese,Chinese criminal theories and legislations and in Anglo-American law system are commented, and after doing that, the author analyzed the constitute elements of discontinued abettor in Chinese criminal law. The withdrawal from the accomplice is the emphasis and the relationship between the discontinued instigation and the withdrawal, the constitute elements of the withdrawal and the criminal responsibility of the withdrawn person are deeply discussed.The fourth chapter is about the criminal responsibility of abettor.1, the author comments the different opinions about the basis of the abettor's punishment in German, Japanese, Chinese criminal law theory and Anglo-American law system, and the mainly analyses is on the different views of causal theory of accomplice.2, Different legislations and theories of abettor's penalties and punishment principle from different countries are commented,and the punishment principle on the abettor in our criminal law has been put forward, and also, the judgment of the abettor's role in a joint crime are discussed in this paper.The fifth chapter is about other problems of abettor.1, About the abettor and the status crime, the author discusses the opinions about 3 situations:non-status person abetting a person with status to execute crime, person with status abetting non-status person to execute status crime, person with status abetting non-status person to execute unreal status crime, and get the own opinion to the topic above.2,About the error of abettor, three topics, the abettor's error in the same crime constitution, the abettor's error in the different constitutions and the error between the abettor and the indirect principal,are discussed here and the author's views are put forward.
Keywords/Search Tags:Abettor, Joint crimes, the basis of punishment, the elements of constitution, Nature
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