The Research Of Implicated Offender Punishment Principle

The controversy on implicated offender is mainly on the identification of implication,characteristics and definition of implicated offender, the difference between implicated offender andother forms of crime, the penalties on implicated offender and so on. The author believes that thediscussion on any form of crime ultimately serves to determine the penalties for the offender. Hence,this article will focus on discussing the choosing of punishment principles for implicated offender.In China, implicated offender is merely a concept in criminal law theory. Although in judicialpractice the implicated phenomenon is not uncommon, it remains undefined in the current legislativeand judicial law literature. There are no general guidelines or provisions on the penalty of implicatedoffenders, with the exception of some minor implicated situations discussed in sub-rule provisions andjudicial interpretations.However, the provisions on the punishment of the implicated are different, andeven contradictory in some circumstances. As a result of unstandardized law provisions, it often leads toa chaotic situation regarding penalties of implicated offenders in the judicial practice. For two similar oreven the same case, different judges, or even the same judge at different times, would come todifferent decision. This resulted in the uncertainty of rule, which has severely impaired the fundamentalrule of law-equality and justice. This certainly does not help to maintain the integrity of the law and itspredictive function, making it difficult to predict the legal consequences of the potential offenders'behavior.In view of the current legislative and judicial uncertainty, there has been a heated debate amongscholars regarding the penal code of implicated offenders. Currently there are primarily four schools ofthoughts among the academia in China, namely: thefelony, Imposition of the Most Severe of thePunishments, cumulative punishment and principle of double criminality. Every school of thoughts hastheir own theoretical basis, and the heated debate continues with no final conclusion at the moment.For the Implicated, there should establish a unified principle of the felony, in the line with theprinciple of legal certainty. Therefore, this paper, the basis of various viewpoints and judicial practice,discusses and analyses the various reasons behind the current diversity of principle of the felony inimplicated cases. The author stands that the root cause of the current situation is that the concept ofImplicated offences is unclear, and failure to consider the various factors when selecting the principle offelony to the in punishing the implicated.Therefore, after comparing the pros and cons of various viewpoints, the author proposes are-definition of Implicated offences, taking into account the purpose of penalty and the basic principlesof criminal law. On this basis, at the conclusion–the Implicated should be divided into two cases: thelaw expressly provided for in Implicated, strictly following the basic principles of legality, to bepunished in accordance with the law; the law does not make the Implicated circumstances expresslyprovided, shall be severely from the heavy felony principle.