A Study On The Top Issues In Joint Offense

With numerous controversies, the issues in joint offense contain plentiful contents. To start with an integrated system, the most basic formation of joint offense should be made up of two major contents: the first is establishment of complicit, and the second is separation of complicit (separation of complicit in a broad sense). It is advantageous for settling cases to grasp these two problems properly in judicial practices. Along with development of science and advance of technical merit, labor division in society is increasingly meticulous, while dependency between copartners is also more and more serious, and more and more crimes of concurrent negligence emerge. Until now, Criminal Law in our country has not yet affirmed crime of concurrent negligence in legal aspect, which is a deficiency for building the integrated system: joint offense, researches on theory of Criminal Law should be enriched to mat legislation.This thesis is divided into 3 parts: preface, text and epilogue.The preface mainly introduces significance and necessity of 3 problems about joint offense studied in this thesis.The text concludes 3 parts in the following:The first part, a focal point of this thesis, refers to establishment of complicit. To start with essence of joint offense, the author conducts comparative study of joint offense theory and joint behavior theory. The former emphasizes that formation of identical crime is an essential document for establishing joint offense, therefore, over-restriction to sphere of joint offense goes against hitting joint offense effectively; while joint behavior theory stresses that joint subjective malignant reflected in joint behavior of the joint defender is regarded as foundation of punishing joint offense, so complicit is only established on condition of joint behavior, in light of this viewpoint, sphere of joint offense is bound to be expanded too widely, which goes against the modern logos of Criminal Law favoring the defendant. It is just because these 2 theories cannot figure out satisfactorily what is on earth the essence of joint offense that partial joint offense theory appears later. By analysis of shortcomings of the above-mentioned 2 theories and superposed part in joint behavior of the doers advocated by partial joint offense theory, the author concludes that partial joint offense theory is a reasonable standpoint for settling intrinsic problem of joint offense. The author, based on clearing essence of joint offense, further puts forward 4 important documents of establishing complicit. Or rather, subjective important document of complicit establishment is that the doer is capable of taking criminal responsibility; identity criminal and unidentified criminal of the issues in joint offense are attended in this thesis. The subjective one of complicit is the key of the 4 important documents. Subjective request of joint offense lies in joint offense of each doer, including joint deliberation and joint fault (joint fault is exposited in the second part: crime of concurrent negligence in view of logical system of exposition). The doers, in aspect of joint offense, are requested to commit the same criminal content and intentional contact. Intentional contact is a sign of forming joint intention to commit crime, whose method can be expressive or hinted, in this way, respective criminal intention of doers compounds joint offense will of joint offense system. Objective important document of establishing complicit, regarded as the same type of object commonly, is not a focal point, which request 2 meanings: one is joint behavior; the other is causality between joint behavior and criminal consequence. Joint offense is staged, in process of committing joint offense, whether the doers can establish joint offense deserves discussion, if others, apart from the joint offense subject, join in the offense. In request of resolving this problem, this thesis probes into complicit so as to perfect theory of complicit establishment.The second part refers to research on crime of concurrent negligence. Crime of concurrent negligence exists in large quantity in social life; moreover, it increases in a vast scale along with technical progress and social development. However, it has not been affirmed in legal aspect in Criminal Law of our country. In this thesis, the author takes attitude towards crime of concurrent negligence in each country as a starting point, expounds from 3 aspects: necessity of establishing crime of concurrent negligence, definition of crime of concurrent negligence and penalty provision of crime of concurrent negligence, and forms a comparatively integrated system of crime of concurrent negligence. There are equally 2 kinds of viewpoints in Criminal Law theory and legislative practice towards crime of concurrent negligence: negative theory and positive theory. The author, through retort against major standpoint of negative theory, affirms standpoint of crime of concurrent negligence, expounds necessity of establishing crime of concurrent negligence, and defines crime of concurrent negligence from 3 important documents of establishing it based on the above-mentioned. Important subject document of establishing crime of concurrent negligence, identical with that of individual offense, needs no extra regulations; subjective important document of establishing crime of concurrent negligence is based on joint fault caused by violating joint intentional obligation; while objective important document of establishing crime of concurrent negligence is based on joint faulty behavior and harmful consequence cause by it, whose essential important document is causality between behavior and consequence.The third part, another focal point of this thesis, mainly studies separation of complicit, which is divided in both broad and narrow sense. In broad sense, complicit separation contains suspension of complicity, abortion of complicity and separation of complicity in a narrow sense. This thesis discusses separation of complicit in a narrow sense. The author, in the first place, defines complicit separation, and makes a conclusion, through investigation of opinions of scholars at home and abroad and legislative practice, that so-called complicit separation means, before ending of implementing joint offense but after forming complicit, part of joint offenders end their own criminal behaviors positively, and prevent behaviors of other joint offenders or strive to prevent criminal consequences, in order to reach a certain fact and legal form to remove influence in their previous behaviors towards offense or interdict causality between their own behaviors and eventual criminal consequences. Based on the definite definition, the author proposes 3 criteria of complicit separation: time criterion, subjective criterion and objective behavior, and infers that time slice of complicit separation should be the whole joint offense stage from preparation of joint offense to offense ending. Subjective criterion of separation is that the doer gives up his own criminal intention and passes it on to other joint offenders; while the objective one is that the doer not only suspends his own criminal behavior, but also carries out corresponding behavior to prevent other joint offenders from going on with offense or strives to prevent criminal consequences. Complicit separation can be confirmed in accordance with these 3 criteria. In order to better understand complicit separation, the author briefly expounds specific complicit separation. Abettor separated from complicit requests effective withdrawal of conspiracy, aiding criminal separated from complicit requests to effectively eliminate their own assistance and behavior influence, authentic joint offense separation requests to cut off their own behavior and other joint offenders'behavior and causal connection of criminal consequences. Penal provision to complicit separation is an inevitable part of complicit separation theory; the author thinks that the separator should be punished slightly, be alleviated penalty or be remitted penalty, furthermore, specifications of remitting, lightening and alleviating penalty should also be illustrated respectively.In conclusion, the author makes a summary of this thesis, points out some limitations, and plans to research relative problems about joint offense more profoundly in future work and study.