No Mens Rea Qualitative Behavior Of The Criminal Purpose

Although there is no regulation about the concept of perpetrator and accomplice in China's Criminal Code, academically speaking, there still exist some distinction between the principal criminals and joint offenders. The method of the continental legal system which represented by Germany and Japan doesn't extend in this distinction, but from the point of view, the two are essentially inextricably linked. From the specific provisions of China's Criminal Code, it should be said that the specific provisions are established on the basis of the direct principal criminals, but in general provisions, it also conducted a general regulation about the joint offenders (such as the instigator). Its essence is exactly the same as the partitioning of the complicity which is divided by perpetrator and accomplice. Thus, when talking about an accomplice theory, the discussion of the perpetrator and accomplice can't be avoided in the theory of our criminal law. In the theory of accomplice, there always exist an argument between the expansion of the perpetrator theory and the restrictions on the perpetrator theory, which the former is based on the system of the Single perpetrator while the latter is based on the distinction of the accomplice system. Under a single perpetrator system which represented by Italy, Austria, crime is not done for the common distinction between perpetrator and accomplice, while under the distinction system which represented by Germany and Japan, there is a strictly distinction between perpetrator and accomplice. Chinese Tong-saying also advocates a distinction between perpetrator and accomplice. However, there are different opinions on how to understand the relationship between perpetrator and accomplice when distinguish these two systems, the representative viewpoints is the theory of accomplice independence and the theory of accomplice dependence. The concept of indirect perpetrator was raised under the influence of the theory of accomplice dependence. A no small controversy was caused among the different theories after this concept was put forward. Under the theory of the expansion of the perpetrator, there is no room for Indirect Criminal, even under the theory of the restrictions on the perpetrator, there is a theory of the accomplice independence is against it. Perpetrator is enjoying a clear status of legislation now in the Penal Code of Germany and Japan. Under the influence of criminal law study in Germany and Japan, indirect perpetrator problems also step into the judicial practice of China's scholars and the vision. However, there is controversy on the two factors, one factor is whether the status of indirect complicity is a "Substitution" in the area of accomplice dependence or it is the principal offender; the other factor is the field of indirect complicity's establishment. The controversy exists not only in the Criminal Code of Germany and Japan, but also in ours. As the impact of China's complicity theory, there is still controversy in academic about the nature, scope, and identification and other related issues of the indirect perpetrator. Indirect perpetrator is not defined clearly in China's criminal legislation, and thus different solutions appear when encountered in the judicial practice in the cases of indirect perpetrator. We mainly deal with the following there views: direct perpetrator, instigator and indirect perpetrator solution. No matter what kind of solution they adopt, they must interpret the perpetrator's conduction to meet the legality which accord with the elements of specific action of criminal charges in specific regulation of Criminal Code. So if it is necessary for the indirect perpetrator to exist when it acts as a proof of committing and whether its existence has special features which other theories do not have. In consideration of this, this article start from the different impact on the practical cases by the theory of the expansion of the perpetrator and the theory of the restrictions on the perpetrator to explore the value of the existence of indirect perpetrator.