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The Identity Of Common Crime Committed

Posted on:2009-07-25Degree:MasterType:Thesis
Country:ChinaCandidate:K FengFull Text:PDF
GTID:2206360248451080Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
On the status of the criminal law, an offence constitutes the main elements of the scope of the study. In Japan and China -Taiwan region, Status is a crime and a satisfied responsibility of the scope of the study. The identity of the crime committed on the issue has been China's Criminal theory, but it is fairly weak. On this basis, the author reviews the legislations of crimes of status and puts forward some suggestions on perfecting in the legislations.This article consists of three parts, with about 30,000 words.Chapter 1 is about the summarization of crimes of status. This parts basing on the comparison and analysis of the definition of crimes of status, the author puts forward his views. The status of criminal is specific Individual elements by Criminal law which impacting Conviction and sentencing. In China's criminal theory, there are so many different views about criminal status. The author thinks that status belongs to the areas of Elements of the main crime. The identity represented the status , qualifications and the relationship in the society. But the Criminal objective which belongs the Subjective element of criminal is a Subjective mentality of people. So we should not put the Subjective element of criminal into the status areas. The status in crimes of status is different from criminal status. The latter are special personal factors stipulated by the criminal law that can determine criminal responsibility, and it contains both the subject's status and object's status. While the former only contains special status of the subject, and it is a particular personal factor an actor must have when he is committing a crime, and it is regulated by the criminal law because it can decide the constitution of crimes of status and influence the penalty. By analyzing different classifies of crimes of status in the criminal theoretical circles in and abroad, the author puts forward that crimes of status should be divided into two kinds which contain pure crimes of status and impure crimes of status; legal crimes of status and common crimes of status; exclusive crimes of status and non-exclusive crimes of status.Chapter 2 is about the status and Common crime. The author introduced the criminal law about common crime of the status. Many countries of Continental Law Legal system make the provisions about common crime of the status into its Law. But there are so many different views in criminal theory. In China , there is no rules about that. As to the conviction and penalty of crimes committed personally, the author points out that both pure crimes of status and impure crimes of status should be divided into two instances: the first one, the actor can constitute a crime as long as he has special status. The second one, the actor with special status can constitute a crime only when he makes use of his status or under some other certain conditions. We must make a difference between these two conditions. As to the conviction and penalty of complicity, the author indicates that as for the complicity of pure crimes of status, a person without special status can not only become the abettor and assistant of the person with special status when he commits a pure crime of status, but also become common actors if he can carryout a part of the implementing action. As to the conviction and penalty of complicity of a person without special status and a person with special status, the author suggests using the alien theory of complicity for reference and leading to the theory of partly complicity, i.e. as a principle, the establishment of complicity must accord with a common constitution, but when over two actors' common behaviors have superposition in the subjective and objective aspect, they can form complicity on the superposing part. We can handle them differently to different situations. As to the conviction of a person with special status abetting or helping a person without special status to commit a pure crime of status, it should be divided into two instances. The first one, during the situation that a man with special status abets or helps one without special status to commit a crime the latter can't carry it out personally, if the formers status is used in the crime and the latter also joins in a part of implementing conduct, they become common implementing criminals. Otherwise the man with special status become indirect implementing criminal, and the man without special status is innocent. The second is the situation that a man with special status abets or helps one without special status to commit a crime the latter can carry it out personally, and we should also cope with it according to the situation whether the man with special status make use of his status and the man without special status knows it or not. Under the circumstance that two men with different status commit a pure crime of status together, we can also lead to the theory of partly complicity to deal with it. When two men have conspired to commit a crime together with each one taking advantage of his own position, without taking advantage of the other's office, we should convict them separately. If they not only use their own position, but also need the other's position to support them, they should be convicted according to the more serious crime. If the law has stipulated their common acts as two different crimes, they should be convicted separately. As to the complicity of impure crimes of status, the author mainly probes into the conviction and punishment of the complicity of impure crimes of status with special status that influences both criminal quality and penalty in alien criminal law. Under the circumstance that a person without special status joins a person with special status in the impure crimes of status, both the theory of convict differently and convict in common in alien theories have some limitations, and it owns to the legislation. The author suggests that first of all they should form complicity on the basic documents of criminal constitution, and then convict the person with special status as the crime of status. As to a person with special status joins a person without special status in the impure crimes of status, the person without special status should be convicted as the actor of common crimes, while the person with special status should be convicted as complicity of crimes of status. We should learn the German and Japanese Criminal Law.Chapter 3 is about the review and perfection of crimes of status regulated in the Criminal law. The author analyses the regulations of specific crimes and complicity about crimes of status in the current criminal law and points out that there are many defects and they should be perfected. The perfection of pure crimes of status is as follows: The first one, amend the facts and legal penalties of resemble crimes so that they are in correspondence with each other. The second one, delete repeated articles in the criminal law to maintain briefness of the law. The third one, increase legal penalties of crimes committed by state functionaries, and add penalty of property and qualification to them. The fourth one, adjust the content of current crimes of status to ensure the scientific nature of criminal legislation. The perfection of impure crimes of status is as follows: The first, construct constitutions of some crimes again to make them accord with logical structures of impure crimes of status. The second one, add regulations that any state functionary should be punished severely if he commits an impure crime of status by taking advantage of his position. The third one, broaden the punishment to criminals under age. Meanwhile we should add other new articles of crimes of status in the criminal law. As to the complicity of crimes of status, we should use alien legislations for reference and stipulate them in the criminal law as follows: If a man without special status joins in a crime with special status as important documents of criminal constitution, he should be convicted as the complicity of the crime, but his punishment should be lightened. The penalty that is lightened or weighened or immuned because of the actor's special status can only be applied to the man with this status.
Keywords/Search Tags:status, crimes of status, pure crimes of status, impure crimes of status, common criminal
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