On The Differences Between Perpetrator And Accomplice

The punishment scope of accomplice and the penalty discretion of participants are the core issues to be solved in the legislation and the theory.The unitary system of complicity and the dividing system of crime participation have different responses.The distinction between perpetrator and accomplice exists in dividing system of crime participation,which is the key and difficult point of the theory of accomplice in the Criminal Law of Germany and Japan.Although the core concept of perpetrator does not exist in the China's Criminal law,the constitutional requirements stipulated by the specific provisions of the Criminal Law are actually the provisions of perpetrator,and the theoretical circles have always studied perpetrator,so there is also the issue of differentiating perpetrator and accomplice in China.The current Criminal Law in our country is mainly based on the classification of functions,and the criminal participation theory system with the principal offender as the core pays too much attention to sentencing criminal participants,but neglects the stereotyping of the constituent elements of the joint offenders,resulting in the confusion of distinguishing the system of accomplice.On the basis of the general investigation of the system of criminal participation,this paper makes a thorough analysis of the distinction between perpetrator and accomplice from the theoretical basis,standard construction,type analysis and application in Chinese practice.The main body is divided into five chapters.The first chapter:The general survey of criminal participation system.Firstly,on the basis of combing the legislative style and theoretical transmutation of the unitary system of complicity and the dividing system of crime participation,this paper analyzes their respective advantages and disadvantages,and points out that the dividing system of crime participation maintenance stereotyping of constitutive elements,narrowing the punishment scope of accomplice is more reasonable.Secondly,the legislation of China's criminal participation system is very vague.It does not belong to the single-layer division system of accomplice in German Legislation and Japanese Legislation,but also differs from unitary system of complicity.It is self-construction on the basis of absorption and reference,which also provides legal norms for the study of the necessity of Chinese legislation about crime participation system.Subsequently,the existing system of criminal participation in China seriously ignores the division of labor among the criminal participants and its correlation in the phenomenon of co-operation,and the distinction between perpetrator and accomplice is necessary in China.However,the single-layer division system in Germany and Japan utilizes the classification in accordance with acts to solve conviction and sentencing,which has an insurmountable drawback.Establishing a double-layer distinction evaluation system,returning to the original intention of the distinction between perpetrator and accomplice,utilizing the distinction between perpetrator and accomplice to solve the problem of criminal participants' conviction,the principal offender and the accessory to solve the distinction between the sentencing of the joint offender is more conducive to the solution of the problem.The second chapter:The theoretical basis of differentiating perpetrator and accomplice.Under the concept of limited perpetrator,the perpetrator refers to the person who directly infringes the legal interests by carrying out the act conforming to the basic constituent elements;the accomplice refers to the person who indirectly infringes the legal interests by instigating,helping or organizing other which is non-constituent elements.Firstly,the duality theory of co-action,that is,.the punishment boundary of accomplice and the penalty discretion of the criminal participants,is the common problem to be solved by the unitary system of complicity and the distinguished accomplice system.The difference between the two systems lies in the difference in the way to solve the problem,which is the starting point for the study of the distinction between perpetrator and accomplice.Secondly,the general view of the theory of the basis of accomplice punishment is the theory of causal accomplice,and the argument of the basis of accomplice punishment is embodied in the internal dispute of the theory of causal accomplice.Both revision provocation theory and compromise provocation theory are based on the illegality of the principal offender.The difference between them lies in whether the inherent illegality of the accomplice should be considered and whether the relativity of the illegality should be admitted.The theory of eclectic provocation affirms the relativity of the violation of the law while insisting on the joint and several nature of the violation.Finally,the subordinate nature of accomplice is more reasonable in the legislative theory.In the interpretation theory,the subordinate nature is not incompatible with the provisions of Chinese Criminal Law,so China should adhere to the subordinate nature;in the factor subordinate nature,the extreme subordinate nature and the minimum subordinate nature both have insurmountable drawbacks.It is worth affirming that the establishment of a joint offence is based on the premise that the principal offender is lawless and the punishment scope of accomplices is limited under the theory of restricted subordination.The third chapter:The rational construction of differentiating standard between perpetrator and accomplice in double differentiating system.Firstly,the distinction between perpetrator and accomplice in Germany's Criminal Law and Japan's Criminal Law must have the dual functions of conviction and sentencing.Under the pressure of criminal justice,the concept of perpetrator tends to materializing.Secondly,in view of the legislation of criminal participation in our country focuses on the distinction between principal offender and accessory,and pays too much attention to the sentencing of joint offenders,we should establish a double-layer distinction system between conviction and sentencing,realize the conviction of participants through the distinction between perpetrator and accomplice,and solve the sentencing of participants by the distinction between the principal and the accessory offenders.Therefore,the concept of perpetrator should not be materialized,and the standard of distinguishing perpetrator from accomplice should adopt the normative formal-objective theory.Finally,under the double-layer distinguished evaluation system,perpetrator and principal offender are not at the same level,but the types of criminal participation in Chinese Criminal Law play an important role in determining the criminal responsibility of the co-activists:the organizational offender in the Criminal Law must be the principal offender;the principal offender is established in most cases,and it can be established in the occasion of the secondary perpetrator.Accomplice;abettor is generally recognized as the principal offender,but in principle the sentencing of the abettor is lighter than the principal offender;assistant is generally recognized as an accessory offender,but when the assistant plays a major role or provides an important reason for force in the joint crime,he or she can be identified as the principal offender.The fourth chapter:The type analysis of differentiating perpetrator and accomplice in double differentiating system.This chapter mainly focuses on the typesof joint perpetrator and accomplice,indirect perpetrator and accomplice,and special types of perpetrator and accomplice.The difference between joint perpetrator and abettor is whether or not he has implemented all or part of constitutive requirements.The indirect perpetrator is an inherent perpetrator,whose use of others as a tool is equivalent to the use of his own body,equipment,animals and other tools by the direct perpetrator.It is preferable to adopt the standard obstacle theory to distinguish the indirect perpetrator and accomplice.The concept of "collusive co-perpetrator" in Japan's Criminal Law and "perpetrator after perpetrator" in Germany's Criminal Law alienate the concept of perpetrator,which easily leads to dividing system of crime participation into unitary system of complicity.In the context of Chinese Criminal Law,the two concepts can be resolved through the concept of organized offender,abettor or aider.Under the normative perpetrating act,coerced accomplice is the perpetrator in the implementation of the constituent elements of the act,when there is no cause of illegal obstruction.The coerced establishes the organizing offender,and then deemed as principal offender in the confirmation of the principal offender and accessory.The abettor who induces others to commit a crime,does not draw up a criminal plan and does not lead the commission of a crime;The organizing offender is a person who organizes,leads,plans,and directs the commission of a crime.The difference between the abettor and the invisible aider lies in whether the behavior leads to the determination of other people's crime,and when he causes others'criminal decision,he is abettor;Instead of provoking a decision to commit a crime,an invisible aider rather than an abettor should be established.The fifth chapter:The application of differentiating perpetrator and accomplice in China's practice.This chapter mainly analyses telecommunication network fraud crime and environmental pollution crime.The perpetrating act of telecommunication network fraud crime is the act of making up the truth or concealing the truth,causing the victim to fall into a wrong understanding and then dispose of the property;A person who carries out the act shall be perpetrator of the crime of fraud.Persons who carry out acts such as organizing,planning or helping to withdraw funds shall be accomplices in the crime of fraud.If there is no complicity with the swindling criminal gang,person who help withdraw funds shall be perpetrator of the crime of covering or concealing the proceeds of crime.In the environmental pollution crime,the direct polluter who carries out the perpetrating act is the perpetrator of the environment pollution crime,and the accessory can be established in the determination of the principal offender and the accomplice.The operator of the enterprise shall be the organizing offender if he has not carried out perpetrating act at the same time,and the principal offender shall be constituted in the identification of the principal offender and the accessory.General employees,renters and equipment providers of polluting enterprises who do not carry out pollution discharge generally shall not be accomplices.