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Research On Withdrawing From The Complicity

Posted on:2014-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:J H ZhangFull Text:PDF
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The purpose to research the theoretical of withdrawing from the complicity isto solute the accomplice person’s crime responsibility reasonably that himself/herself gives up a crime on his/her own initiative and does considerable effort toprevent crime result, but the crime result still appears in the common criminalprocess. There is no concept of withdrawing from the complicity in China’s criminallaw. The confusion generated by such an accomplice case in the judicial practice,which usually be punished as Accomplished Crime, the situation of withdrawingfrom the complicity only be considered as a discretionary sentencing plot. But suchpractice is not only contrary to the principle of adapting our guilt punishment, butalso exist varying degrees of criminal law drawbacks. Thus this paper introduce thetheory of withdrawing from the complicity.Otsuka Ren professor as the famous criminal law scholars in Japan firstly putforward the concept of withdrawing from the complicity, since then the criminaleducational world put it as an independent theory to research and discuss in-depth.In addition, Germany, France and some other countries embody the meaning of thetheory in the legislative. The study in our country is only at the initial stage with lessattention paid, although many scholars also conducted some research, but has not yetformed a unified definition. Author propose the concept of this article according tothe definition of different scholars at home and abroad, and distinguish between itand suspension accomplice, surplus behaviors and so on easy to confuse.There is a certain complexity in the identification standards of complicityrenunciation. The theories about withdrawing from the complicity in Japan are asfollows: the obstacle uncompleted saying, the cutting off cause and effect relationsaying, the eliminating accomplice relate saying, etc. The cutting off cause andeffect relation saying is the common saying, but more and more scholars are inclinedto the eliminating accomplice relate saying. On the implementation phase, OtsukaRen professor think that withdrawing from the complicity only occurs after the act of perpetrating, while in the mainstream view, it not only exist before the start ofcrime, but also exist after the implementation of the phase. On the overall standarddefinition, Otani Real think that only the offender to eliminate its influence andremove existing complicity, while the other inmates based on the new mens rea orcrime relationship to continue to implement the crime, the actor could be the seceder.Relatively Britain put forward its own standards. Through different countries anddifferent scholars point of view, the author focused on these factors which need to beespecially considered, that is, whether the actor is random in the subjectivity,express or implied on the way of act, whether need to make a sincere effort in theobjective, the measure of the causation force. On specific standards, according todifferent division of labor and leavers in the accomplice, the crime person is dividedinto joint principal offender, the organization criminal, instigator and accessory. Thestandard of withdrawing from the complicity exist differences in different situations.Through studying the different countries’ punishment principle rules ofwithdrawing from the complicity, this article recognized that actor only bearresponsibility for the former behavior. But the specific punishment still need bedefined according the offender and the subjective factors in different stages.Facing the current legislative situation in our country, the system’sestablishment of withdrawing from the complicity for our country has importantpractical necessity and significance of criminal law. It not only make up for theshortage of suspension accomplice theory, limit the criminal discretion, and satisfiesthe principle of crime punishment commensurate in China and demand of theausterity of criminal law, protect the benefit at the same time embodies thehumanism of criminal punishment. Although belonging to different legal systems,applying different systems, it dose not affect our country to learn the foreignbeneficial criminal law theory. The last part of the article put forward to establish thetheory which is in line with our country, according to our country legislation statusand the cause of the introduction of withdrawing from the complicity. Suggest thatpromulgate the judicial interpretation of withdrawing from the complicity by theNational People’s Congress, to form a set of easy-operating unified theoreticalsystem accord with the reality of our country and establish the independent principle of punishment. In other words, we can ease or dismiss a punishment about theperson who gave up the crime before execution; for beginning behind of escapingfrom a crime person can light or ease a punishment; the detachment under theobjective urgent threat could be given a heavier punishment in the light ofdetachment; and the behavior of just walk-off only as the circumstances ofsentencing.
Keywords/Search Tags:Withdrawing from the Complicity, The Eliminating Accomplice Relate Saying, Suspension Accomplice, Criminal Responsibility
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