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On One-Sided Accomplice In Criminal Law

Posted on:2008-10-18Degree:MasterType:Thesis
Country:ChinaCandidate:X J YangFull Text:PDF
GTID:2166360242959274Subject:Criminal Law
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In consideration of Chinese criminal law, one-sided accomplice has not been categorized into the scope of joint offense so far; provided that there are much one-sided accomplice in the juridical practice. In this article, the author initially discusses the necessity, composition of crime, criminal liabilities to be undertaken by the parties and the other relevant matters of one-sided accomplice. The article are divided into three parts, namely, introduction of one-sided accomplice, establishment of one-sided accomplice and liabilities of one-sided accomplice.Chapter I is the introduction of one-sided accomplice, which is divided into three sections. Section I is the concept analysis. In Section I, the author enumerate four cases to illuminate the difficulty of the current theory of joint offence to explain some judicial practices based on the analysis on the current Chinese criminal theory on the constituent elements of joint offence and so introduce the discussion on the theory of one-sided accomplice. Section II is the theory difference. In Section II the author discusses the disputes in the current Chinese and overseas theory of criminal law on the theory of joint offence. In the current Chinese and overseas theory of criminal law, some theorists deny the concept of one-sided accomplice and some agree with such concept with some disputes on its scope. The author points out that the key in the disputes lies on "How to interpret the subjective connection of joint offence.". Section III is the re-analysis on attributes. In Section III, the author identifies and analyses that one-sided accomplice is a special form of joint offence. One-sided accomplice complies with joint offence in terms of its constituent elements from both the subjective and objective aspects. Some theorists consider that one-sided accomplice does exist but it shall be disposed of as the indirect principal. The author considers that one-sided accomplice is not indirect principal. Denying one-sided accomplice being joint offence from the aspects of judicial practice will definitely break the connection between one-sided accomplice and its cooperative offence, which make the disposal of one-sided accomplice as a difficulty.Chapter II is the establishment of one-sided accomplice, which is divided into three sections. Section I is the basis of establishment. The theoretic basis is the essence of joint act of partial offence, that is, where several parties jointly implement the act involving several different constituent elements and such elements are of the same nature and overlapped, the overlapped part shall constitute the joint offence. The legal basis is Chinese criminal law. As stipulated in the criminal law, the joint offence shall be constituted only if the parties have the "fellowship in intention"; provided that the criminal laws have not stipulated that the parties shall have the "mutual intentional contact". With regard to some theorists' consideration that the existence of one-sided accomplice will cause the awkwardness that there is the accessory but there is no principal, that author is of the opinion that the accessory may exist without out the existence of principal under some conditions. In addition, under the latest criminal law, the accessory shall be imposed with the mitigated punishment or exempted from punishment, which has provided the legal support to the opinion that one-sided accomplice (independent accessory) exists. The factual basis is the legal practice. Several cases have certified that the confirmation on the existence of one-sided accomplice is advantageous to the correct determination on the offending form of the one-sided joint offenders in the actual case. Section II states the constituent elements for establishment. There shall be more than two persons as the subject; the accessory shall have the interest in implementing the offence from the subjective aspect; and the accessory shall have assisted the offence from the objective aspect and the assistance directly affects the principal in implementing the offence. Section III identifies the scope of one-sided offence, that is, one-sided aider, one-sided perpetrator and one-sided abettor.Chapter III is the liabilities of one-sided accomplice. Section I is the general principles. In general, the one-sided accomplice shall be treated and punished in the same way as the ordinary joint offence. Section II is the liabilities to be undertaken by the offenders. In Section II, the author separately discusses the liabilities to be undertaken by the offenders at the various levels and the different punishment against the one-sided accomplice in the offence of different types. Section III is the form of offence and liabilities. In Section III, the author sets forth the liabilities to be undertaken if the offence has not been completed.
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