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The Constructivism Of Conspiracy And Joint Principal Offenders From The Perspective Of Unity

Posted on:2021-04-04Degree:DoctorType:Dissertation
Country:ChinaCandidate:S Y LiuFull Text:PDF
GTID:1366330647453218Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The concept of the complicity co-perpetrator was a conceptual framework with many disputes.In order to resolve these disputes,it was necessary to clarify its position in the conceptual system of co-principal offender,which meant the necessity to clarify the logical relationship between the concept of co-principal offender and related concepts in the field of co-perpetrator offender.In the microscopic sense,there was a close theoretical relationship between the concept of complicity coprincipal offender and the phenomenon or trend of materialization of co-principal offender.On the one hand,from the perspective of a controversial phenomenon,the conceptual dispute of complicity co-principal offense originated from the substance of co-principal offense,and this dispute inevitably be involved in the substance of co-principal offense.On the other hand,from the perspective of ontology,the definition of the concept of complicity co-perpetrator would be also involved the substantial problem of common principal offender behavior.At the level of degree,the concept of complicity co-perpetrator is a completely materialized concept of coprincipal offender.At the periodic level,the concept of complicity co-perpetrator is a concept of co-principal offender that faces the stage of implementation and transcends the essence of co-principal offender.In the macroscopic sense,in order to grasp the concept of complicity and co-principal in deep insight,it could not be separated from the theoretical background that the system of differentiating between the principal and the accomplice and unitary crime participation System,both which operated independently but existed coupling.The two systems have a common theoretical goal in the level of proper realization of the qualitative and punishment of the co-offenders;At the same time,the difference between the two systems was reflected in the classification model of co-offenders(work-division classification/function classification)and the identification standard of core characters(punishment standard of perpetrator-referred/punishment standard of function).The former was an external,secondary standard and the latter was an internal,nuclear one.The concept of complicity co-principal offender is based on the system of differentiating between the principal and the accomplice,which laid the theoretical foundation of co-principal offender.At the same time,after breaking through the limitation of the formal objective theory,the self-development of the concept of complicity co-principal offender crossed with the theoretical track of the theory of unitary crime participation system.There was a great controversy about whether to introduce the concept of complicity co-principal offender in China.The position of negationists could be divided into two paths: one was the incompleteness of the concept of complicity coprincipal offender itself,and the other was the coordination of the concept of complicity co-principal offender legislation in China.The latter was of greater significance.Considering that terms such as abettor appeared in the general provisions of the criminal law,which had the characteristics of distinguishing system;and also appeared function classification and punishment standard of function thus,it was not easy to clarify the above legislative attitude.To resolve such difficulties,we should be realized on the basis of the purpose explanation theory of joint crime system.Unitary crime participation system our country belonged to considering that the general provisions of the criminal law adopted the punishment standard of function rather than the standard of perpetrator referred for the central character in the joint crime.However,even so,We couldn't conclude that the concept of the complicity co-perpetrator couldn't be localized.This point was based on the legislative attitude not to exclude the system of differentiating between the principal and the accomplice from the joint crime system in China.And the point mentioned above was based on legislative attitude not to reject the theory of work-division classification as well as theory of punishment standard of perpetrator-referred(the two are the standards of system of differentiating between the principal and the accomplice,especially the latter is its core standard).There had been disputes among several theoretical paths around the basis of the concept of complicity co-perpetrator.The theory of punishment standard of perpetrator-referred could not only reconnect the concept of complicity co-principal offender to the theoretical system of co-principal offender,but also could reasonably explain the legislation phenomenon of treating accomplices as perpetrators in China,so it should be regarded as the theoretical path to localize the concept of complicity co-principal offender.In the criminal jurisprudence of Germany and Japan,the theoretical consensus on the conceptual foundation of the common principal offender was the theory of behavior domination· the theory of perpetrating act referred.Among which,the theory of behavior domination was taken as the theoretical scheme to implement the theory of perpetrating act referred.However,the theoretical scheme of behavior dominance was just a generalized framework,constitutive elements dominating concerned,which involved the status,role,subjective purpose and situation of behavior of the co-offenders.This theory lacked its own theoretical center as well as reasonable proposal to balance the relationship between the above elements.It was a apparent defect.From the perspective of joint crime,considering that each accomplice was to invest certain resources to realize the result of constitutive elements,this paper chosen to take the status of co-offenders as the focus of the concept of complicity co-perpetrator in addition to the behavioral elements.In other words,the character of the co-offender swing back and forth like a pendulum clock between the two levels of action and status.By using of rethinking and reconstruction of traditional concepts such as behaviorism,legal interests,willliberalism,the principle of domination of status · the theory of perpetrating act referred had become a theoretical scheme for implement of the concept of complicity co-perpetrator.According to such theoretical scheme,the one utilized his/her prisoner status among components might be regarded as the complicity co-perpetrator in the sense of principle of domination of status if he imposed an inevitable influence for the realize of the constitutive result in the joint offence.The establishment of the complicity co-perpetrator,thus,should depend on the construction and identification of the existence of status,utilization of status and criminal intent in utilization of status.Under the principle of domination of status,the ambiguity still existed,which can only be eliminated by route of typification.In refer to the format of domination of status,complicity co-perpetrators were divided into command-based complicity co-perpetrators,competency-based complicity co-perpetrators and participationbased complicity co-perpetrators.The command-based complicity co-perpetrator referred to the situation in which a criminal concerned had the dominant position of issuing orders and instructions to his accomplices in a joint crime.In the field of practice,typical command-based complicity co-perpetrator occurred in the circumstances of group crimes,corporate crimes and government agency crimes.The competency-based complicity co-perpetrators referred to a situation in which a criminal specific had a technical,professional or other specific ability advantage over his accomplices.Status of this kind of complicity co-perpetrators came from its own external relationship or qualification advantage,which is different from the typical characteristics of other co-offenders.According to the sources of complicity coperpetrators,they could be divided into professional co-principal conspirators,technical co-principal conspirators and other types of competency-based complicity co-perpetrators.The participation-based complicity co-perpetrators referred to a situation in which a criminal concerned had neither the advantage of ordering his accomplices nor a specific advantage,but his participation also played a significant role in the realization of the constituent elements and plays an important role.In reality,there were huge theoretical and practical disputes in the identification of coprincipal offenders in the crimes of accommodation,employment and lookout behaviors.In a word,the different types of status determined roles played or shared by the co-offenders so that various requirements were put forward for the establishment and cognizance of their status.Under the theoretical framework of the principle of domination of status · the theory of perpetrating act referred,it was necessary to analyze the different types of complicity co-perpetrators so as to clarify not only the applicable conditions of a several types of complicity co-perpetrators as well as specific crimes represented by them,thereby facilitating the judicial application.
Keywords/Search Tags:the complicity co-perpetrator, the unitary crime participation system, the system of differentiating between the principal and the accomplice, the punishment standard of perpetrator-referred, theory of perpetrating act referred
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