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Research On Successive Complicity

Posted on:2021-05-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y H WangFull Text:PDF
GTID:1486306290969719Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Joint offence is the "chapter of darkness" and "chapter of despair" in criminal law,and successive complicity is a sub field of mixed theory in complicity.Successive complicity is not only related to the general theory of accomplice,but also to basic theory in criminal law,such as the act of perpetrating and constitutive requirements.The core of the theory of successive complicity is the evaluation of post behavior,that is,the nature of the act and the scope of responsibility.The purpose of this paper is to properly address this difficult problem in judicial practice and theoretical research through case studies,comparative study and logical analysis.The paper is divided into five chapters,with the main body of 166,100 words.Chapter 1 investigates is the investigation of the judicial practice of successive complicity.This chapter selects the typical cases of Germany,Japan and China(including Taiwan region),presents the evolution of practical views on the macro level,and analyzes the judgment rules of specific cases on the micro level.On the whole,in the current practice of Germany,Japan and Chinese Taiwan,the view of fully affirming successive complicity has declined,and all kinds of intermediate and completely negative cases are in sharp opposition.In Chinese mainland,the cases of fully affirming the successive complicity are still relatively common,but there are more and more intermediate and negative judgments,and they are more and more influential.It is particularly noteworthy that the theory of causal complicity has been widely recognized in practice,so solutions to the problem of successive complicity must be found this context.In practice,there are not only differences and disputes on the scope of responsibility of the subsequent actor,but also on constructs such as succession time and the types of successive complicity.Chapter 2 discusses the space-time structure and type division of successive complicity.The structural judgement regarding the final point of the intervention of the subsequent actor and the necessity of joint implementation of the successive joint perpetrator,and the classification of the types of successive complicity are the pre-task to solve the core problems of successive complicity.The final time point of subsequent actor's intervention should not be formally based on the accomplished crime,nor should it be abstractly based on the substantive end of the crime.As long as the crime of the former actor can be evaluated as being implemented,the subsequent actor can collude in participation and establish an accomplice relationship.In the succession of joint principal offender,it is not necessary for the actors to share and complete the residual behavior,which is the inevitable result of the substantiation of perpetrator.Successive complicity belongs to the sub type of complicity without prior conspiracy,whose particularity is that the former has caused a certain result or state before the subsequent actor intervenes.According to the type of participation,the complicity can be divided into the successive joint perpetrator and successive accessory offender;however,it cannot be a successive instigator.On the basis of the number of acts constituting a crimes,there may be successive complicity in both single act crimes and multiple act crimes,but it is more typical in the case of multiple act crimes.Successive complicity is based on the premise of "a crime",and two parts in successive behavior can only occur in "the same opportunity".Therefore,there is usually the problem of successive accomplice in single crime and inclusive offence,but there is no necessity and value of discussing successive complicity in implicated offence.Chapter 3 presents the theory of successive joint perpetrator.Neither the doctrine of dominating constitutive behavior and the theory of causal complicity can properly explain the substantial basis of the joint perpetrator's "partial implementation while complete responsibility".Sharing the nature of perpetrator and accessory offender,the punishment of joint perpetrator is based on the mutual attribution of behavior reciprocity,which consists of subjective intention liaison and objective joint perpetrator.It is difficult for the theory of behavioral commonness and the theory of total criminal commonness to fully explain the nature of joint perpetrator,especially in terms of rationality of conclusion and compatibility with China's legislation.The theory of partial criminal commonness can not only avoid punishment loopholes,but also conforms to the legislation of against neglect joint offence in China,and the requirement of "mutual use and mutual promotion" conforms to the nature of joint perpetrator.On the boundary between perpetrator and accessory offender,the substantial tendency of the conception of perpetrator should be affirmed,but the degree of substantiation should be determined according to the criminal law of China.According to the theory of partial criminal commonness,in the context of the substantial perpetrator,intention liaison and joint perpetration are necessary to the establishment of joint perpetrator,but it is not necessary to implement the act of perpetrating realistically.As for the successive joint perpetrator,there is a theoretical contradiction among the theory of comprehensive affirmation,various kinds of compromise theories and the theory of complete negation.It is not reliable that the arguments for the theory of comprehensive affirmation of "the indivisibility of a single crime","the unity of the cognizance of accomplice,and the individuality of punishment".However,the indivisibility of act of perpetrating has a certain rationality.The theory of total negation is based on the doctrine of behavioral commonness and the doctrine of causal accomplice or the doctrine of negating afterwards intention.But the theory of total negation is easy to cause an imbalance between crime and punishment and even the loopholes of punishment,and its basis is not sufficient.However,this theory takes causality as the standard to determine the scope of the subsequent actor's responsibility,which conforms to the principle of culpability.The theory of "the effect of antecedent act is continuous" is integrated with the theory of causal complicity.The theory of "distinguishing single behavior offence from multiple behavior offence" and the theory of "distinguishing the nature of act and the scope of responsibility" are worth learning from in methodology.The newly proposed theory of negation such as "omission crime" is not comprehensive in dealing with the phenomenon of successive complicity.We should integrate the theory of "the effect of antecedent act is continuous" and the theory of relaxing the content of accomplice causality,and make a functional understanding of intention liaison and effect continuity under the framework of causal complicity theory.In the phenomenon of successive joint perpetrator,the intention liaison and "effect continuity" have the function of "binding" two parts in successive behavior.In other words,the subsequent actor knows that the former actor is committing crime and still participates in the joint implementation,which has the function of making the subsequent actor accept the evaluation of the constitutive requirements of the former behavior.The object of succession of successive joint perpetrator is neither the prior behavior and its result,nor some state and effect,but the evaluation of the constituent requirements of the prior actor's crime.However,the aggravating result of aggregated consequential offence and the evaluation of the former offence of combined crime cannot be inherited because they are relatively independent.Different from that,sentencing rules such as amount can be inherited,because sentencing rules do not exceed the evaluation of the same constituent requirements.Chapter 4 reviews and analyzes the theory of the successive accessory offender.Culpability theory of complicity and wrongful theory of complicity cannot reasonably explain the basis of punishment for accessory offender.The pure causing theory separates accessory's illegality and perpetrator's illegality,and the amending causing theory ignores the independence of accessory.Starting from the dual illegality of accessory and perpetrator,the mingling causing theory reasonably delimits the punishment scope of accomplice,and can properly solve the problems of attempted instigation and other.Based on the theory of mingling causation,the establishment of the accessory is subordinate to perpetrator's actual behavior.The doctrine of the independence or duality of the accessory is not convincing in theory,but also an incorrect interpretation of the provisions of the criminal law of our country.The end result is an improper expansion of the scope of punishment for the accessory.The causal element of the accessory offender is to promote the perpetration of the perpetrator and its results,so the accessory offender can be established at any stage of the implementation of the perpetrator.The inheriting object of the successive accessory offender is also the evaluation of the constitutive requirements of the perpetrator,but it is different from the principle of the successive joint perpetrator.Because the successive accessory offender promotes violation of legal interests by connecting his act of assistance with the behavior of perpetrator.Based on the theory of result promotion,the successive accessory offender can only take responsibility for the facts of his promotion.Therefore,in the case of aggregated consequential offence and combined crime,the successive accessory offender is also not responsible for the aggravating constitution and former crime independently accomplished by the former actor,but the sentencing rules are applicable to the successive accessory offender.Chapter 5 returns to the context of criminal law of China and solves the problem of successive complicity.The third and fourth chapters mainly discuss the general theory of the behavior nature evaluation and the scope of responsibility of the successive joint perpetrator and the successive accessory offender,but fail to take the provisions of China's criminal law into account,especially the complicity system and the illegal structure of the specific crime.Although there are many ways to explain the classification of joint offenders in the criminal law of China,considering the defects of unitary complicity system,we should interpret it as differentiating system as much as possible.Judicial practice and theory usually divide the perpetrator into the principal perpetrator and the secondary perpetrator.The former belongs to the principal and the latter belongs to the accessory together with the assistant.When we understand the complicity system of our criminal law,we must take this fact into account.Therefore,while affirming the rationality of substantial tendency of perpetrator,we should take the legislative provisions,judicial practice and general theory of our country as the background to ease the substantiality of perpetrator.This paper therefore advocates the concept of "semi substantive perpetrator".That is to say,if actor plays an important role in the accomplishment of the important part of the offence,a primary perpetrator shall be decided;if actor plays a secondary role in the accomplishment of the important part of the crime,a secondary perpetrator shall be identified;if actor aids or promotes the act of perpetrating and its results,an aider accessory shall be cognized.Both the secondary perpetrator and the assisted offender are accessory,and their punishment should be judged individually according to their functions.Under the system of complicity with Chinese characteristics,if the subsequent actor shares the actual behavior of the former actor's crime,it is possible to establish either the primary successive perpetrator or the secondary successive perpetrator,and the specific determination varies according to the illegal structure of the individual crime.If it promotes the implementation of the former actor's crime,it can only establish the successive accessory offender.Of course,it can-not be excluded that when the subsequent behavior constitutes the former actor's crime,the act constitutes other crimes independently and forms imaginative joiner of offenses.On this basis,according to the illegal structure of individual crime,taking into account the facts and norms,and using the method of systematic interpretation,this paper specifically analyzes the nature and scope of responsibility of the successive accomplice in the crime of intentional injury,illegal detention,kidnapping,robbery,theft and fraud.
Keywords/Search Tags:Successive joint perpetrator, Successive accessory offender, Complicity system, Behavior nature, Scope of liability
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