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Study On The Successive Joint Principal Offender

Posted on:2008-01-28Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:2166360215453501Subject:Criminal Law
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Successive joint principal offender as a kind of the joint principal offender, contradicting common joint principal offender ,means such situation:The original party starts to commit the execution behavior of some crime , in the process he finds that it is very difficult for him to achieve by himself ,so he explains to the latter party and asks him to participant. On the basis of this common agreement they commit the criminal action together. As the section of successive joint principal offender in the joint principal offender, its theories are still very weak; but this problem connects with a number of cases in practice.About successive joint principal offender, there lie the affirmative doctrine, denied doctrine in the history of its development; but the contradiction lied in the form of offence-jointing theory and action-jointing theory. The offence-jointing theory requests the joint principal offender to commit the same crime, and the original party and the latter party should take responsibility for the detrimental result caused by them, otherwise it is not the joint principal offender. In the situation of the latter party participating in the action of the original party, although the latter party doesn't commit the crime by himself, he should take responsibility for the detrimental result caused by the pre-executor. The action-jointing theory thinks the original party and the latter party as the joint offence as soon as they have the same action. So the latter party only takes responsibility for the detrimental result caused by him. At present, the theory of the crime achieves agreement on the admitting of successive joint principal offender. As a form of joint principal offender, successive joint principal offender is objective in realization. Successive joint principal offender has two meanings: firstly, what it alleges is a kind of joint principal offender, which has the function of making differentiation in the type of the joint principal offender, that's to say when the latter party participates in the behavior of the original party, both are joint principal offender on the base of the latter action and the latter result. This is the original meaning; also the base of contradicting the original joint principal offender. Secondly, whether the latter party and the original party are the joint principal offender on the base of the whole behavior and result before participating is the other meaning of the successive joint principal offender, which is the responsibility for the successive joint principal offender.Up to now, the scholars stand out a large number of standpoints and have no systematic research to the concept of the successive joint principal offender. Summarizing the standpoints of Chinese scholars and Japanese related scholars, the writer think, successive joint principal offender means that as far as a certain crime is concerned, after the original party commits a part of the act execution in advance , the latter party knows perfectly that fact but participates the crime ,and produces the common intent committing the crime by the meaning communication with the original party and then commits the execution behavior of the surplus alone or together. It has the following three characteristics: Firstly, the successive joint principal offender only can exist in the execution behavior of the particular crime committed by the original party, which is the time-space condition of the successive joint principal offender's existent. Secondly, the original party and the latter party have the meaning of the common execution in advance. Thirdly, both have the fact of the common execution under the domination meaning. According to the characteristics, both have no meanings of the common execution in advance, or after the original party gives up crime intent under the circumstance practiced on the way of the execution behavior , the latter party carries out the crime making use of the result and behavior produced by the original party , or on the condition of denying unilateral joint principal offender, the latter party knows about the behavior or the result done by the original party and then carries out the rest execution behavior while having the domination meaning of inherit ,or the original party makes use of the result or behavior produced by the latter party, all of which are not successive joint principal offender.The responsibility scope of the successive joint principal offender is becoming a problem, which is the responsibility scope of the latter party and the original party. All countries'theories and judicial cases are inconsistent to this. In a ward, there are three kinds of theories. One is the affirmative doctrine, that is to say, the latter party should take responsibility for the behavior and result produced by the original party before he gets involved. One is the denied doctrine, that is to say, the latter party only takes responsibility for the behavior and result produced after he gets involved .The third is the restrictively affirmative doctrine. At the judicial cases aspect, there are affirmative cases, also negative cases and limitative cases in Japanese judicial practice. Now that the affirmative doctrine and the denied doctrine have their own benefits and frauds, the restrictively affirmative doctrine emerges with the tide of the times. On the base of analyzing various standpoints and the foundation of the form and the responsibility scope of the successive joint principal offender separately, the writer think, we can make use of three layers of the stereoscopic to judge the responsibility scope of the successive joint principal offender. The first layers, we should judge whether the behavior of the latter party produced after he gets involved is the successive joint principal offender, which is the premise and the foundation that we apply this structure to judge the responsibility; but the basis of judgment is the meaning of the successive joint principal offender, particularly its three characteristics. The second layers, under the circumstance that we affirm the successive joint principal offender ,we should judge whether the results of the execution behavior by the original party are keeping on or not and whether the latter party have made use of the keeping-on result. These two conditions expressed the objective conditions and subjective conditions of the contacting of the original party and the latter party. So, we can remove the responsibility of the successive joint principal offender of the consecution offender. The third layer, under the premise that we affirmative behavior produced by the original party continuously and the latte party have made use of it, we should judge whether the continuous result produced by the original party's execution behavior is superfluous to the latter party, if superfluous, then the latter party dose not take the criminal responsibility for the superfluous result. The superfluous result means the result produced by the original party's execution behavior has already outrun completely to the part requested by the basic composing important item of offense carried out by both persons. The superfluous result is not necessary to person's act of execution. Even having no the superfluous result, the latte party can also carry on the execution behavior of the crime exactly as a result.The criminal responsibility of the successive joint principal offender is very complicated when the crime appearance ties up to round the successive joint principal offender. At the situation of the continued crime, since the continued crime is a kind of continuing crime, after the original party's execution behavior is completed, the latter party is the successive joint principal offender and belongs to the ruler of the criminal responsibility when he joins the crime in the continuous process. At the situation of the aggravated result crime, under the circumstance that the original party causes the occurrence of aggravated result and the latter party joins to complete the rest execution behavior, we should combine concrete situation to judge the crime responsibility for the aggravated result. As far as the combined crime of the successive joint principal offender is concerned, while it belongs to the allied type on the composing important item, judging the latter party's responsibility belongs to the judgment method of the responsibility scope completely of the successive joint principal offender. But if it belongs to the allied type of the penal punishment, the judgment method of the responsibility scope only applies to the combined crime the latter party gets involved .At the situation of the embroiled crime, the essence of the embroiled crime contradicts the meaning of the successive joint principal offender. Because the time-space condition of the successive joint principal offender existence is in an execution behavior constitute important item desired, namely it is the whole of the execution behavior from several behavior facts. Therefore the successive joint principal offender and the judgment method of the responsibility scope can not apply to the embroiled crime. But since the embroiled crime are from the few offenses, the related contents of the successive joint principal offender still can apply to any offense among them.
Keywords/Search Tags:Successive
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