Research On Abettor

Article 29, paragraph 1 of China's Criminal Law states:"who abets a crime shall be punished in accordance with his role in a joint crime." There is no doubt that this paragraph recognizes the existence of an abettor in the joint crime, and establishes the abettor's status as a form of the system of complicity. However, paragraph 2 of this article states: "if the person who had been abetted has not committed the crime, punishment for the abettor may be lighter or be mitigated. " Which essentially describes that the abettor can exist outside of the joint crime, that is to affirm the establishment of abettor in a non-joint crime.That causes contradictions and confusion for us inevitably. Based on the provisions of this article, our scholars' debate on the issue of abettor is rather intense, bringing many views and schools. Through analysing the theoretical debates of the Chinese and foreign scholars, cutting into from the theory of joint crime, I intend to analyse the nature of abettor thoroughly, and try to return the clear face to abettor. This paper is divided into four parts:Part one: The nature of joint crime. Abettor is one of the joint crimes, so if we want to explore the abettor issue, we must first discuss the nature of the joint crime. With regard to this issue, there are common criminal, common behavior and some of the common crimes. I agree some of the common crimes, which establishes a theoretical premise for the related issues of abettor discussed below.Part two: The nature of the abettor. This section is the core of this article. To clarify the nature of the abettor lays a theoretical basis for the concept of the abettor, the element of establishment as well as the abettor penalties in the next context. With regard to the nature of the abettor, German and Japanese criminal academics code are mainly saying the accomplice subordinate and the accomplice of independence. Based on China's current legislation, the dominant view in criminal law scholars in China is that the duality of that abettor, which is divided into concrete duality and abstract duality. Some scholars who oppose the duality put forward the accomplice subordinate, the accomplice of independence, nature abandoned and independent criminal charge. Through in-depth analysis of the above-mentioned theory, standing objectivism position of criminal law, taking infringement of legal interests as the theoretical basis, I adhere to the theory of worthless results, put forward my views on abettor's nature, that is amendment abettor subordinate. Only when the instigated person who has a certain behavior, bring a certain extent risk on the benefit of law, the right abettor can be punished.Part three: The concept and the establishment's elements of abettor. Referring to foreign legislation, as well as scholars' insight, combining with the relevant mainland authorities, this section puts forward the concept of instigator on the stands of amended abettor subordinate said. That means that one instigates other people who have criminal responsible capability to produce or strengthen criminal resolution purposely, and thus led to the implementation of the crime. This concept leads to further establishing the following establishment's elements, namely: 1. Abetting behavior. 2. Abetting intentional. 3.The instigated person has committed the abetted crime.Part four: Analysis with regard to the instigator penalty provisions in China's Criminal Law. According to article 29, paragraph 1, one abetted a crime shall be punished according to his role in joint crime. This is an instigator penalty in general principle. One abetted crimes committed by persons under 18 years of age shall be punished severely. This is an instigator penalty in special principle. This section focuses on analysis of article 29, paragraph 2. There are many debates about this provides. Through the analysis about the above theory this part consider that article 29, paragraph 2 should include three conditions: (1) One refused the instigation from abettor; (2) The person who has received abetting then give up the criminal meaning, and does not impose any criminal activity; (3) Though the instigated person accepted the instigator's solicitation at that time, but in fact he committed the crime which has nothing to do with the abetting crime. These three cases have one point in common, that is the instigator's abetting act does not result in real infraction or dangerous against benefits of law. Therefore, I believe that the instigator dose not does not constitute a crime in these three kinds of cases. In view of this, I propose to abolish article 29, paragraph 2 of this Chinese Criminal Law.