Research On The Surplus Behavior In Complicity

The surplus behavior of joint offence is a special problem that derives from jointoffence,it is a very challenging problem in the theory of joint offence. There is no provisionon the surplus behavior in complieity in China’s criminal legislation,but a large amount ofsuch cases exist in judieial practice，this puts the courts into a dilemma of no basis canaccording to in judieial practice. Although many scholars have dicussed on the problem of thesurplus behavior,but,for the current situation of the theories,there is still a little distance toachieve the degree of more mature, to say the least, the theory of the surplus behavior isstill not perfect, has not yet formed a complete system. Method standard needs maturetheory as the backing, the maturity of the theory can promote the legislation conditions tobecome mature.So, I attempt to make an introduction and analysis of the availabletheories,and prose my own viewpoint in certain aspects,I hope it can be beneficial to thedevelopment of the theory of surplus behavior,and provide practical reference opinions ofsolving the relevant problems in judicial practice to a certain extent.This paper consists of four parts except preface and epilogue.The first part:the general overview of the fundamental theories of surplusbehavior.Firstly,I introduce a few kinds of the concepts of surplus behavior,and sum up somequestions from them.Then put forward my own concept of surplusbehavior on the basis of theanswers to these questions.Secondly,I analyze the essential characteristics of surplusbehavior.I think the surplus behavior as a new criminal pattern has the nature of subsidiaryand independent,which distinguishes it from the joint offence and individualdelinquency.Lastly, this part discusses the established characteristics from four differentangles,including objectivity,subject and subjectivity,which provide the theoretical rules for thejudgment of surplus behavior in the practice.The second part: the judicial determination of surplus behavior.This part analyzesandillustrates the specific determination of surplus behavior according to the differentcharacteristics,qualities of different criminal patterns and the realistic factors in the judicialpractice.I discuss the different determination criterions of implementedaccomplice,abettor,accessory offender,and organized offender’s surplus behavior,andelaborate the determination of surplus behavior in some special criminal patterns,such as thetransformed offence,the aggregated consequential offense and the imaginative jointer ofoffence in the process of joint offence. This part especially discusses the determination of thesurplus behavior of implemented accomplices,emphasizes that other accomplices present but stand by whether belongs to surplus behavior need analyze particularly according to thenature of different offences.The third part: the criminal responsibility of surplus behavior.Studying on surplusbehavior mainly resolve the problem of criminal responsibility.This part introduces thelegislative cases concerning the criminal responsibility of surplus behavior firstly,and thenelaborates the basis principle of the distribution of criminal responsibility the person whoexecutes the surplus behavior should undertake the criminal responsibility independently.Tobe specific,the surplus behavior is classified into two general types:repeatability surplusbehavior and non-repeatability surplus behavior,which have different principles to deal withthe distribution of criminal responsibility separately,and then I discuss how to decidethe duplicate in order to decide the accusation and punishment accurately.Combination ofChinese and foreign legislative and judicial practice, exploring the implementation of criminaloffenders have been limited commitment refleeted in th elegislative，and improve thelegislative and judieial praetice of China，proposal to serve the practice.