A Study On The Issue Of Surplus Behavior Of Joint Offence

The surplus behavior of joint offence is a problem that derives from joint offence. In joint offence, the situation that one or several accomplices'behavior exceeds the scope of joint offence intention is defined as surplus behavior of joint offence (hereinafter to be referred as"surplus behavior"). In the research field of criminal law, the surplus behavior is a challenging issue. It is one of the most difficult problems in the theory of joint offence; there are many problems worth discussing such as its established characteristics, judicial determination, and the ascription of criminal responsibility. What is more, it has massive existence in judicial practice along with the phenomenon of joint offence increased and complicated continually. How to determine and handle it becomes a difficult problem troubled the judicial officers. Because the surplus behavior happens in the course of joint offence, the boundary between them is often blurring, that often puts the judicial officers in a dilemma of the determination and distribution of the criminal responsibility, so it has important theoretical values and deep realistic significance for us to study the issue of surplus behavior.Comparing with the importance of surplus behavior in the practice, the theoretical research of it is lagging behind. There are very few articles focused on this issue in the criminal theory circle home and abroad, and there is also much opposition and divergence both in legislation and criminal theory. In China, the meaning of surplus behavior and its criminal responsibility has not been defined specifically in the current Criminal Law. Moreover the research of it is not treated seriously, and the theory is still in its infancy. This situation has caused great obstacles to determine the surplus behavior accurately and attribute the criminal responsibility reasonably in the judicial practice, and it obviously goes against to crack down on crime and protect the human rights. As a result, it is especially necessary to get hold of the judgment criterions of surplus behavior and distribution principles of its criminal responsibility according to different situations in the practice. I attempt to make an introduction and analysis of the available theories, and propose my own viewpoint in certain aspects. I hope it can be beneficial to the development of the theory of surplus behavior and give rise to more persons'attention and exploration of this problem.This paper consists of four parts except preface and epilogue.The first part: the general overview of the fundamental theories of surplus behavior. Firstly, I introduce a few kinds of the concepts of surplus behavior, and sum up some questions from them. Then put forward my own concept of surplus behavior on the basis of the answers to these questions. Secondly, I analyze the essential characteristics of surplus behavior. I think the surplus behavior as a new criminal pattern has the nature of subsidiary and independent, which distinguishes it from the joint offence and individual delinquency. Lastly, I differentiate and analyze the distinction between the surplus behavior and other interrelated concepts.The second part: the established characteristics of surplus behavior. As a special criminal pattern, the surplus behavior has its own special established characteristics. This part discusses the established characteristics from four different angles, including space and time, objectivity, subject and subjectivity, which provide the theoretical rules for the judgment of surplus behavior in the practice. The paper emphasizes the judgment of"exceed"in the subjective characteristic—exceed the scope of joint offence intention, and concludes an integrated judgment criterion on the basis of the analysis to different viewpoints home and abroad. Furthermore, through researching and thinking, I propose my own viewpoints about some problems, for example, I think the surplus behavior not only may appear in the process of implementing a joint offence, but also exist in the process of preparation or after the completion of a crime; the surplus behavior is not limited to implemented behavior, it also includes preparatory behavior; Implemented accomplice, abettor, accessory offender, and organized offender all can become the subject of the crime of surplus behavior.The third part: the judicial determination of surplus behavior. This part analyzes and illustrates the specific determination of surplus behavior according to the different characteristics, qualities of different criminal patterns and the realistic factors in the judicial practice. I discuss the different determination criterions of implemented accomplice, abettor, accessory offender, and organized offender's surplus behavior, and elaborate the determination of surplus behavior in some special criminal patterns, such as the transformed offence, the aggregated consequential offense and the imaginative jointer of offence in the process of joint offence. This part especially discusses the determination of the surplus behavior of implemented accomplices, emphasizes that other accomplices present but stand by whether belongs to surplus behavior need analyze particularly according to the nature of different offences.The fourth part: the criminal responsibility of surplus behavior. Studying on surplus behavior mainly resolve the problem of criminal responsibility. This part introduces the legislative cases concerning the criminal responsibility of surplus behavior firstly, and then elaborates the basis principle of the distribution of criminal responsibility—the person who executes the surplus behavior should undertake the criminal responsibility independently. To be specific, the surplus behavior is classified into two general types: repeatability surplus behavior and non-repeatability surplus behavior, which have different principles to deal with the distribution of criminal responsibility separately, and then I discuss how to decide the"duplicate"in order to decide the accusation and punishment accurately, especially discuss the determination of the accusation in some special situations such as the imaginative jointer of offence, etc.