On The Surplus Behaviors In Complicity

There is no provision on the surplus behavior in complicity in China's criminal legislation, but a large amount of such cases exist in judicial practice. The proper definition of surplus behavior in complicity is crucial to convicting, sentencing, and ascertaining criminal liability. The theoretical study on the surplus behavior in complicity lags behind the problems in practice so that the courts hold the surplus behaviors with different standards. Therefore, this thesis discusses the surplus behaviors and proposes some ideas to perfect relative laws from the following aspects: the concept, constitutive requirements, and ascertainment of the surplus behavior.This thesis comprises of four chapters apart from the introduction and conclusion:Chapter one summarizes the surplus behaviors in complicity. Firstly, the author comments on several representative concepts of the surplus behaviors in complicity, and then put forward his own concept: the surplus behaviors refer to the perpetrator committing crimes beyond the intention of joint crime in the process of complicity. The author also discriminates the surplus behavior from deficit behavior and mistake of joint crime. At last, the author briefs the theoretical basis of the surplus behaviors in complicity and the studies on this topic from both home and abroad, which constitutes the basis for the further study of this thesis.Chapter two discusses the constitutive requirements of the surplus behaviors in complicity, The author discusses the constitutive requirements of the surplus behaviors in complicity from the perspectives of subject, subjective aspects and objective aspects. As to the subjects, the author adopts the view of "subordination of the accomplices" and thinks that only the perpetrators can be the subjects of the surplus behaviors in complicity; as to the subjective aspect, the author thinks that the criminals of the surplus behaviors in complicity should have the intention of crime and the negligent acts in the complicity do not go beyond the domination of the intention of joint crime; as to the objective aspect, the author thinks that the complicity and the surplus behaviors, which happen during the period from the preparation for the crime to the accomplishment of the crime, have the relation of causality.Chapter three deals with the identification of the surplus behaviors in complicity. This chapter, which is the key chapter of this thesis, comprises of two parts. Part one discusses the identification of the surplus behaviors in complicity under general circumstances. On the basis of the advanced theories both from home and abroad, the author proposes that the surplus behaviors in complicity should be identified in accordance with the principle of subjective and objective unification; also, he puts forward specific standards for identifying the organizing criminals, abettors, perpetrators, and patricides criminals in accordance with the accomplices' divisions. By analyzing the aforesaid four surplus behaviors through the links between subjective aspects, objective aspects and subjective and objective aspects of joint criminal actions, the author further discusses the specific identifications of the surplus behaviors in complicity. Specifically speaking, the identification of the organizing criminals' surplus behaviors should adopt the principle of "foreseeable"; the abettors' surplus behaviors should be identified in accordance with their intention; the patricides criminals and perpetrators' surplus behaviors should be identified in accordance with different circumstances. Part two discusses the identification of surplus behaviors under several special circumstances. The author does not think the aggregated consequential offenses and imaginative joiner of offences in the complicity have surplus behaviors. The offender only performs one criminal offence, and the aggregated consequence or overlapping offence, whether caused by intention or negligence, does not go beyond the scope of the intention of joint crime, so the aggregated consequential offenses and imaginative joiner of offences do not belong to surplus behaviors. The joint criminal offences are integral, and the aggregated consequential part and overlapping part are caused by the basic constitutions of the crime, so it should be admitted that the aggregated and overlapping consequences are the are result of each joint offender's resultant force and they can not be investigated separately because in principle each joint offender shall bear the liability for the result. Whether transforming crimes and implicated crimes belong to surplus behaviors should be identified in accordance with whether they are beyond the scope of the intention of joint crime.Chapter four discusses how to perfect relative laws on surplus behaviors. Drawing the lessons from Russia and ancient China's legislative precedents on surplus behaviors, the author suggests China's legislation enact "in the process of complicity, the offences which the offender performed intentionally beyond the intention of joint crime are surplus behaviors, and the aforesaid offender shall bear the criminal liability" into the amendments of Criminal Law, and the Supreme Court and Supreme People's Procurator ate interpret the specific identification of the surplus behaviors in complicity.