On The Establishment And Scope Of Unilateral Accomplice

Unilateral Accomplice is an objectively existing phenomenon. However, it is controversial in theory whether this phenomenon is a special type of accomplice or whether it should be labelled as "accomplice". This paper starts with the general theory of unilateral accomplice, takes Criminal Code of PRC as its foundation and takes into account judicial practice in an effort to analyze the establishment and scope of unilateral accomplice and to combine theoretical research and judicial practice, which is of practical implications for fighting unilateral accomplices.This paper consists of three parts, i.e., the preface, main body and a concluding remark. The main body includes five chapters.Chapter One is a general introduction to the theoretical origins of unilateral accomplice and points out that unilateral accomplice is a criminology terminology in civil law system. The concept of unilateral accomplice is discussed and a similar term, the latent criminal in Anglo-Saxon legal system, is also introduced. A comparison is made between two kinds of joint crime theories, i.e., the common crime theory, and the common behavior theory, to point out that the theory of unilateral accomplice is a product of the common behavior theory. How the theory of unilateral accomplice comes into being and evolves has also been analyzed during the comparison.Chapter Two focuses on the theoretical debates which occurred, both home and abroad, over whether unilateral accomplice can be established. Regarding the theoretical detabes occurring in foreign countries, the paper gives an introduction of the negation theory and the affirmation theory and further classifies the two theories on the basis of various views in Japan's criminology circle. Regarding the theoretical debates occurring in China, the paper presents a variety of views in favor of negation theory and dwells on responses by the affirmation theory to the negation theory. In the end, the author makes a summary of the above debates and criticize the negation theory and points out the shortcomings that those in favor of the negation theory have in dealing with the punishment of unilateral accomplice.Chapter Three is a discussion on the constituent elements of unilateral accomplice. Based on the legislative grounds for joint crime and general theory on constituent elements, taking into consideration the features of unilateral accomplice, this chapter inquires into the constituent elements of unilateral accomplice. Regarding the subject element, this chapter criticizes the argument that the unilateral accomplice is one person's accomplice. Regarding the subjective element, this chapter holds that one sided consensus is the minimum requirement of joint crime intention. Regarding the objective element, this chapter states that the behavior of offender who provides assistance in unilateral accomplice must rest on the basis of the offender who has been assisted.Chapter Four is on the scope of unilateral accomplice. The author summarizes four viewpoints surrounding the scope of unilateral accomplice and uses real life examples to prove that an accessory, abettor, or a perpetrator may constitute a unilateral accomplice. Regarding the one sided accessory, the author elaborates on the forms and means of assistance that the one sided accessory gives. Regarding the one sided abettor, the author starts with analyzing the constituent elements of abettor and proves that the establishment of an abettor shall not have the abettee's awareness of his/her being abetted as the precondition. Regarding the one sided perpetrator, a critique of the view point of negation is given from both the theoretical and practical perspective, which in turn, supports the argument that there can be established the unilateral accomplice.Chapter Five presents the standpoints that our country should take and relevant legislative perfections towards unilateral accomplice. The author, after concluding the above four chapters, argues that the unilateral accomplice shall be accepted in China and based on an introduction of various legislative modes home and abroad, sets out his suggestions for further improvement in the law making of unilateral accomplice.