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Transformation Of The Existing Of Theory Of Accomplice

Posted on:2010-08-24Degree:MasterType:Thesis
Country:ChinaCandidate:C J XieFull Text:PDF
GTID:2166360275460478Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
This article explores the subject,namely the foundation on complicity punishment under the question,which is basically still a piece of "virgin land" in Chinese criminal law scholars. Although the debate of this theory has been going on a hundred years in foreign countries (mainly criminal law scholars form Germany and Japan),gaps are still frequent,in my point of view,the existing law theories about the foundation on complicity punishment,apart from the purely provoking theory should be affirmed in the aspect of methodology,the rest of the liability accomplices theory,illegal accomplices theory,modified provoking theory,the compromised provoking theory has stepped into the wrong direction in terms of the methodology.The four theories(excluding the pure provoking theory) did not determine the behavior is whether legal or not from the theory of the model of tatbestand.If we abandoned this only benchmark,simply determined foundation on complicity punishment from the theory of infringement of legal interest,including narrow accomplice creates the crime in the liability accomplices theory,narrow accomplice make principal offenders involving in anti-social status and destroying the social peace in illegal accomplices theory,and then narrow accomplice is decided by principal offenders in modified provoking theory,narrow accomplice subordinately infringe legal interest in the compromised provoking theory.It is impossible for us making an true conclusion according to above these theories because of did not be demonstrated through effect method.In other word,even if they can get to an effect conclusion based on value,however,it did not be yet implemented based on technology (that is,the judge on the theory of the model of tatbestand),even they have not thought about how to meet the tatbestand the conduct of narrow accomplice? Just to imagine:it is absurd and ridiculous that we judge the conduct of narrow accomplice whether punished or not without the implementation of the tatbestand.In my opinion,these four theories were inadequate,just undesirably stay in the layer of the value argument.On the contrary,there is no doubt the correctness of method to purely provoking theory,that is,we judge the conduct of narrow accomplice whether legal or not based on tatbestand,but it is still demonstrated for purely provoking theory through Value which is inconsistent with tatbestand because we must rely on tatbestand when we judge the conduct whether legal or not.It means a technology that put "the crime in value" into a "real crime",so we demonstrate why the conduct of narrow accomplice is consistent with tatbestand not only based on value,or else it is self-contradictory in the logic.Importantly,it is quite significant for purely provoking theory the demonstrated method,however,it never think that previous the theory of the conduct whether stand the test of practice or not? Whether there is a need to re-construct our theory of conduct or not? How to construct our theories so as to not only enable the conduct of narrow accomplice is consistent with tatbestand but also punish of narrow accomplice through a reasonable method? It is a great pity!New control theory for us to provide a solution to solve the intractable problem,it goes: a person control or should have controlled the objective conditions and influent on process of existence of the specific object.It is the conduct of criminal law that people according to Criminal law control or should have controlled the objective conditions and influent on process of existence of the specific object,so we can draw:parts of the objective conditions that narrow accomplice control or should have controlled is made up the conduct of other people,in another way,the conduct of other people is the conduct of the principal offender, parts of narrow accomplice is made up the conduct of the principal offender.So it is not difficult to obtain that the conduct of narrow accomplice also meet tatbestand.It is quite perfect in the method to demonstrate how narrow accomplice meet tatbestand.It is to be satisfactorily resolved for the problem of foundation on complicity punishment.
Keywords/Search Tags:Foundation on Complicity Punishment, the Liability Accomplices Theory, Illegal Accomplices Theory, Provoking Theory, Control Theory
PDF Full Text Request
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