Indirect Accomplice Legislative Research

As a very important concept in the criminal law theories of Civil Law, the concept of indirect principal originated in Italian Law in the Middle Ages and established by German jurists in the late nineteenth century. After that, with the outputs of the German criminal law theories, the theory of indirect principal has been recognized by Civil Law countries, and has been confirmed by lots of national criminal law in the form of legislation. At the same time, although the Common Law countries didn't have the concept of indirect principal, they created the "innocent agent system" which based on the punishments for guilty and had the similar effects with the indirect principal, as well as raised it into the level of legislation. That means the theory of indirect principal has been concerned by many jurists from different countries and has been confirmed by many countries in the form of legislation or cases.On the contrary, our country has an opposite attitude. Our first touching on the concept of indirect principal is a thesis in the article of indirect principal, which is published by Professor Chen Xingliang in 1984. And we didn't have a monograph on the indirect principal until 1998. In addition, although some domestic scholars have paid more attentions to the indirect principal and the thesis about introducing it have become more and more, few scholars concerned about its legislative issues in China. And what is most important is that nowadays even China has announced the implementation of the "Republic of China (7)", but the indirect principal has never risen to the level of legislation and accessed into our criminal law system.However, as for our Criminal Law, establishing the indirect principal in our criminal law system in the form of legislation is a big breakthrough——it means a lot to study the theories of common crime, to improve our criminal law system, and to realize the principle of legality further. Therefore, the author believes that studying the legislation of indirect principal in China and introducing it into our criminal law system have become a problem which has to handle immediately.Therefore, by many studying methods such as literature review, comparative analysis and empirical methods, this thesis conducted a comprehensive and systematic analysis on the basic theories of indirect principal and its relevant legislations in foreign countries, and got a conclusion that introducing the indirect principal into our criminal law system is both necessary and possible. At the end, this thesis eventually made a specific idea about the legislation of the indirect principal so that we can advance its legislative process in China.This thesis is divided into four parts:The first part is an overview of the basic theory of indirect principal. In this section, the author conducted a legal definition of indirect principal, demonstrated the principal of indirect criminal, as well as analysis its types. All that laid the foundation for the later study;The second part is the relevant legislations in foreign countries and their enlightenments. In this section, the author conducted the analysis on the "innocent agent system" in Common Law and the relevant legislations of indirect principal in Civil Law countries, and got the conclusion that it is both necessary and possible to formulate the indirect principal in Criminal Law;The third part is about the necessity and feasibility of introducing the indirect principal into our criminal legislation. In this section, the author proved that introducing the indirect principal into our criminal legislation is really necessary and possible by conducting an analysis on our national conditions and legal systems.The fourth part is the specific idea of introducing the indirect principal into our criminal legislation. This section is the core part of the thesis. In this section, the author made the specific idea of introducing the indirect principal into our criminal legislation——At the beginning, the Nation should revise the existing Criminal Law and promulgate a new one. Then, the new Criminal Law should formulate a section named "Principal and Accomplice" under the chapter "Crime". At last, in the "Principal and Accomplice" section, the Criminal Law should formulate an article which has two paragraphs. The first paragraph is:"A person whose actions are consistent with the implementation of the crime of the Criminal Law is a principal. And the second paragraph is:"The one who using a person who is not criminally responsible or non-occurrence accomplice relations to commit a crime is also a principal, and should be punished severely.'...