The Reflection And Criticism Of Implicated Offender

At present, the theories of implicated offender mainly exist in the countries ofcontinental legal system, in which Japan as the main representative. The concept ofimplicated offender is clearly defined in Japanese criminal law, also in Taiwanlegislations, but the related regulations were deleted in2005when the criminal lawwas revised. The concept of implicated offender is not existed in the countries ofcommon law; generally it is directly treated as combined punishment for severaloffenses. Since our country introduced the concept of implicated offender from Japan,our country criminal law scholars standpoints about implicated offender are divergent,owing to the undefined regulation of the concept of implicated offender，implicatedrelationship and convicting principles in the criminal law. Someone argue that theconcept should be deeply analyzed, in order to clarify the practical range of theimplicated offense. But more scholars advocate the abolition of the theory forsimplifying the system of crime’s quantity. In the legislation, general principle of ourcountry criminal law has no concept of implicated offense, but the specific provisionsset relevant regulations about it. Generally the theory of implicated offender is theessence of crime or the conviction of crime. However, there are too many differentpunishment principles about the theory, some scholars hold the principle of “choice ofthe most serious offense and the most severe punishment”; some scholars hold theprinciple of “combined punishment for plural crimes”; such as judging from a graveoffense、combined punishment for several crimes. All of these bring about theawkward situation that the theory is not accord with the practice. Based on the implicated condition of the theory, this article mainly discusses it from followingparts:The first part discusses that many countries have no the implicated offenderthrough analysis of foreign legislation and theory. Even in some countries that haverelevant legislation there are also various arguments about abolishment of theprovision among theory horizon. So it is an irresistible trend to abandon theimplicated offense. At the same time the relevant concepts of implicated offender areexpounded.The second part illustrates the punishment of implicated offender in our criminallaw through the method of classifying; the principle of punishment is unable to decidewhich is right due to the nonuniform legislative principle of punishment. And it alsoanalyzes crime punishment、combined punishment for several offenses and eclectic.The third part elaborates concurrence of crime which is the base of the theory ofimplicated offender, then queries the rationality of the existence of implicatedoffender from the angle of constitution of crime.The fourth part focuses on the removal of implicated offender from three aspectswhich is the need of development of theory and practice in criminal law, at the sametime it gives some recommendations on treating relevant Concurrence of crime aftercancel the concept of implicated offender.