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Coerced Offender Research

Posted on:2008-01-24Degree:MasterType:Thesis
Country:ChinaCandidate:L M ZhaoFull Text:PDF
GTID:2206360215996556Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The duress set forth in the article is different from the threat in the criminal crime of China in that the duress is based on the conduct and the imposition under which one behaves in the control of some other persons to do what he is told to do with a less guilty mind. The threat in the criminal crime of China with the background of group criminality is opposed to perpetrator under the principle of education and punishment. Compared the duress with the threat, we can come to see that the latter in the theory is regarded as something followed suit by the perpetrator which should not have been the attitude to the criminal crime.The duress to be charged as a necessity is beyond the question in the theory of the continental law legal family while every nation's legal system has its own characteristics to the necessity. As a kind of inchoate conformation, the peculiarity of crime discontinuance is that the discontinuance of crime should be out of the will of the conductor himself, and just at this point, crime discontinuance differs from crime preparation and crime attempt.The first part concentrates on thehistory and practical legislation on crime discontinuance at home and abroad. On the basis of making a comprehensive introduction of the history of crime discontinuance, the author finds that there is no definite legislation about crime discontinuance, let alone independent crime discontinuance system in history, and the independent crime discontinuance system in Chinese Criminal Law is a great innovation, it helps to study the theory of crime discontinuance and to enrich criminal law.Second part of this article, the author tries to summarize the features of crime discontinuance. After studying various kinds of doctrines on crime discontinuance in China, the author thinks that there are two kinds of crime discontinuance: ordinary crime discontinuance and special crime discontinuance. As for ordinary crime, it has the following three features:(Ⅰ)the action of crime discontinuance should take place in special stage; (ⅱ)the discontinuance of crime should be out of the will of the conductor; the conductor should take effective measures to prevent the result of crime and practically avoid the happening of the crime result.The third part studies the semi-criminal discontinuance. Based on deep research on crime discontinuance's features, the author proposes that our criminal law should prescribe semi-criminal discontinuance. And in this part, the author gives the definition of semi-criminal discontinuance and studies its rationale. On the basis of these, the author points out that in order to establish semi-criminal discontinuance, the following elements should be satisfied: (Ⅰ) the conductor should give up the conduct of the crime from the bottom of his or her heart; (ⅱ)the conductor should make great effort to avoid the happening of the crime result; (ⅲ)though the conductor's effort to avoid the happening of crime result failed, the reason is beyond the control of the conductor.In the fourth part, the author makes a deep research on crime complicity. The author regards crime discontinuance in complicity as a type of special crime discontinuance. Therefore, the establishment of crime discontinuance in complicity entails satisfaction of four elements. As for the concrete element, the first three elements in crime discontinuance are the same as in special crime discontinuance, but the fourth element is somewhat different.The formation of coerced offender's concept is closely linked with coerced offender's status in the criminal law. The coerced offender has undergone the transition from mitigating circumstances to the independent type of accomplice. The coerced offender has two characteristics, among which "coercing" is its basic feature, "playing a secondary role in complicity" is its essential characteristic. It is indispensable to distinguish the characteristic of the coerced offender from the coerced offender's constitution.Two principles should be held while punishing the coerced offender. Firstly, when interests which the coerced person has damaged overweigh threatening interests, the punishment can't generally be avoided. Secondly, whether the coerced person should be punished depends on the degree to be coerced. The duress theory in Anglo-America law system and Continental Law System is meaningful for China's legislation in coerced offender to use for reference. We should pay attention to the coordination among the systems to improve on the legislation of the coerced offender.
Keywords/Search Tags:coerced offender, duress, duress threat necessity, anticipated possibility, criminal liability
PDF Full Text Request
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