Research On The Status Crime In China

The status crime in criminal law refers to a type of crime that uses a special status as the elements as subjects in the constituent elements of crime or as the basis for the addition or reduction of punishment.It is an important type of crime that has always been the focus of theoretical and practical circles in various countries.In the status crime,the special status has a direct impact on the crime and non-crime,this crime and that crime,and the severity of the sentence.Unlike continental law countries such as Germany and Japan,China has not yet established a general provision for status crimes in the general provisions of its criminal law.Instead,it has only established principles for dealing with status crimes in the specific provisions of its criminal law and relevant judicial interpretations.The lack of legislation leads to the controversy of judicial application of status crime,and there are also differences in theory.How to achieve precise identification of status crimes in different types of criminal models is a common challenge faced by both theoretical and practical circles in China.At present,the controversial issues related to status crimes in China are reflected in the separate crimes and joint crimes of status crimes.In the separate crimes of status crimes,the direct principal of status crimes and the indirect principal of status crimes should be discussed separately.The former includes the definition of the "scope" of status crimes and the definition of the "perpetrating acts" carried out by the perpetrator using his status.The latter mainly involves two aspects: firstly,how to accurately convict the two when a status offender uses a non-status offender as a tool;The second question is whether a special status is a necessary element for the establishment of an indirect principal offender when a non-status offender uses a status offender as a tool.In the joint crime of status crimes,there are currently three controversial issues in China: firstly,in genuine status crimes,whether status offenders and non-status offenders can establish a joint principal offender.Secondly,how to accurately convict different actors when both status offenders and non-status offenders establish a joint crime of genuine status crime.Thirdly,how to accurately convict individuals with different identities when establishing a joint crime of a genuine status crime.Under the premise that there is no general provision for status crimes in China’s criminal law,the root cause of the dispute over status crimes lies in the defects in two aspects of theoretical research: Firstly,the theoretical community lacks a scientific and reasonable classification differentiation of status crimes in China.The lack of classification differentiation of status crimes is not only the root cause of the dispute over status crimes in China,but also the main path to solve the dispute over status crimes in China;Secondly,there have always been disagreements in the theoretical community of our country regarding the essence of status crimes.There are three existing positions: the theory of obligation violation,the theory of infringement of legal interests,and the comprehensive theory.When examining the issue of status crimes under different theoretical systems,different conclusions will be drawn.The academic classification of status crimes in China must be based on the provisions of the Criminal Law.Since the establishment of more than 20 status crimes in the Criminal Law in 1979,the number of status crimes in the specific provisions of China’s Criminal Law has increased to 148 and is scattered across various chapters.At present,there are the following problems in the academic classification of status crimes adopted by the theoretical community in China: firstly,there is a deviation in the determination of the scope of "genuine status crimes";Secondly,the distinction between "illegal status crimes and responsible status crimes" does not apply to the local issues of status crimes in China;Thirdly,there is a lack of a classification differentiation approach based on behavioral types.In order to achieve precise identification of status crimes,the classification differentiation of status crimes in China should be carried out from the following three aspects: firstly,based on the legislative model,the distinction between "genuine status crimes" and "unreal status crimes" should be selected,and the scope of "genuine status crimes" in China should be clarified,laying the foundation for the research on the issue of status crimes in China.Secondly,based on the type of status,two distinguishing methods should be selected: "natural status crimes and legal status crimes" and "positive status crimes and negative status crimes",in order to clarify China’s choice of the essential theory of status crime.Thirdly,based on the type of behavior as the standard for distinguishing,three methods should be selected: "hands-on status crimes and non hands-on status crimes","qualified status crimes and exploitative status crimes","single action status crimes and compound behavior status crimes",in order to provide an effective path for the accurate identification of status crimes in China.When choosing the essential theory of status crimes,it is necessary to fully review the internal mechanisms and argumentative logic of different theoretical systems,and combine the basic types and characteristics of existing status crimes in China to select a theoretical system that truly helps to solve the local problems of status crimes in China.The theory of obligation violation advocates that the breach of special obligations by the perpetrator is the only element of illegality in status crimes.The premise of the theory of obligation violation is to affirm that status crimes are obligation crimes,and non-status offenders can never directly or indirectly violate special obligations in obligation crimes,making it difficult for status crimes to be punishable.There are the following obstacles when applying the theory of obligation violation to the issue of status crimes in China: firstly,the connotation and scope of "obligation" lack clarity and directionality;Secondly,there are limitations in the scope of application of the theory of breach of obligation;Thirdly,the basic concept of the theory of obligation violation contradicts the current criminal legislation in China;Fourthly,the theory of breach of obligation cannot solve the problem of illegality of non-status offenders in joint crimes.The theory of infringement of legal interests advocates that the illegality of status crimes stems from the perpetrator’s infringement of special legal interests.The establishment of the theory of infringement of legal interests stems from the emergence and development of the concept of "legal interests".If it is determined that the essence of crime lies in the infringement of legal interests,status crime,as a special type of crime,solving the problem of status crime through the theory of infringement of legal interests is not a problem at the theoretical level.It is only necessary to fully demonstrate the particularity of the special legal interests protected by status crime that are different from ordinary legal interests.In the issue of status crimes in China,the theory of infringement of legal interests also has the following shortcomings: firstly,the special legal interests protected by different types of status crimes are different and require accurate judgment.Secondly,the theory of infringement of legal interests cannot reflect the particularity of status crimes that distinguishes them from ordinary crimes.Thirdly,the theory of infringement of legal interests can easily lead to the expansionary application of status crimes.Therefore,a comprehensive approach should be adopted to understand the essence of status crimes.On the one hand,the comprehensive theory integrates the basic concepts of the theory of infringement of legal interests and the theory of obligation violation,dispels the opposition between the two,and helps to perfect and improve the inherent drawbacks of the theory of infringement of legal interests and the theory of obligation violation.On the other hand,the comprehensive theory is in line with the criminal legislation of status crimes in China,and has irreplaceable functions and values in achieving accurate identification of status crimes.Under the theoretical system of the "comprehensive theory of the essence of status crimes",based on the classification differentiation of status crimes in China,a re examination of the issue of separate crime and joint crimes of status crimes in China can be found,and many disputes will be effectively resolved.In the separate crimes of status crimes,the scope of "status" and the definition of "perpetrating acts" using status should be based on the basic attributes of different types of "status",and substantive judgments should be made based on the "infringement of legal interests and breach of obligations" of the perpetrator.When a status offender uses a non-status offender as a tool to commit a genuine status crime,if the non-status offender simultaneously meets the constitutive requirements of an ordinary crime,the status offender becomes an indirect principal offender of the genuine status crime,and the non-status offender becomes a direct principal offender of the ordinary crime.If the non-status offender cannot establish other ordinary crimes,the status offender as the exploiter should establish an indirect principal offender because they have both obligation violation and legal interest infringement.The non-status offender as the exploited person has indirect legal interest infringement,but due to the lack of status elements,they can only establish an auxiliary offender.When non-status offenders use status offenders as tools to commit genuine status crimes,the theoretical debate on whether non-status offenders can establish indirect principal offenders should adopt a compromise approach at the theoretical level.As for the scope of application of the compromise theory,it should be classified and discussed using the classification differentiation method of "hands-on status crimes and non hands-on status crimes".In hands-on status crimes,non-status offenders cannot be established as indirect principal offenders of genuine status crimes,while in non hands-on status crimes,non-status offenders can be established as indirect principal offenders of genuine status crimes.In the joint crime of status crimes,first of all,it should be clarified from a theoretical level whether the status offender and the non-status offender can establish a genuine joint principal of status crimes.Under the comprehensive theoretical system,the "affirmation theory" is more reasonable when a non-status offender has indirect legal interest infringement.However,the scope of application of the "affirmation theory" should also be limited.From the perspective of "classification differentiation",two types of "classification differentiation" should be adopted: hands-on status crimes and non hands-on status crimes,single action status crimes and compound behavior status crimes.In status crimes that have both "hands-on type" and "compound behavior type" characteristics,the possibility of "non-status offender" and "status offender" establishing a joint principal offender should be affirmed,and vice versa,a negative conclusion should be drawn.Secondly,when establishing a "genuine status crime joint crime" between status offenders and non-status offenders,how to convict should be discussed according to the situation.When a status offender instigates or assists a non-status offender to commit a genuine status crime,it is impossible for the non-status offender to independently complete all the "perpetrating acts".Except for the instigation and assistance behavior of status offenders,both status offenders and non-status offenders must constitute a joint "execution",and they should be recognized as joint principal offenders.When a non-status offender instigates or assists a status offender in committing a genuine status crime,it should be recognized that the status offender constitutes a principal offender,while the non-status offender constitutes an "auxiliary offender" or "instigator".When a status offender and a non-status offender jointly commit a genuine status crime,if the behavior of the non-status offender meets the constitutive requirements of a common crime,the principle of unified conviction should be adopted.As for the choice of charges for unified conviction,it should be judged based on whether the two individuals actually utilized the special status of the status offender.Finally,regarding the issue of conviction when offenders with different status jointly commit genuine status crimes.Under the comprehensive theoretical system,the principle of "treating offenders who have utilized their statuses as principal offenders" is more reasonable in order to achieve precise convictions for offenders with different statuses.Firstly,it should be determined that the "actual user of status" constitutes the genuine status crime corresponding to their statuses,and constitutes a principal offender in a joint crime;Secondly,if only one person actually uses his status in a joint crime committed by offenders with different statuses,his status in the joint crime shall be determined based on the status crime corresponding to his status.The person who actually uses his status shall be the principal offender,while those who do not actually use their statuses shall be established as accomplices or joint principal offenders;Thirdly,if offenders with different statuses utilize their respective statuses,they will each establish the principal offender of a genuine status crime corresponding to their respective statuses and be accomplices to each other.For offenders with different statuses,the principle of "imaginative joinder of offenses" will be followed,and a heavier punishment will be chosen.