Study On Essential Joint Crime

Joint crime is considered as “the darkest chapter of despair and confusion” in criminal law theory. If the essence of joint crime, the property of accomplice, and other famous debates are the core factors that make the joint crime theory complex, then, in the criminal law theory of China, the incorrect division of essential joint crime and random joint crime, and the general ignorance of its classification function, cause the legislation and judicial practice issues of joint crime(mostly essential joint crime). Current theoretical studies about the essential joint crime only pay attention to its concept, characteristics, classification, principles of punishment, the research perspectives are also generally confined within the conceptual framework of essential joint offense of Germany and Japan, failed to place it in China’s criminal law joint crime theoretical system to examine. It makes that China’s criminal law scholars generally confused the essential joint crime with the connotation and denotation of essential joint offense of Germany and Japan, which led to a series of problems of the essential joint crime legislation and justice. The correct division of essential joint crime and random joint crime has the function of distinguishing the methods of application of law between them, such classification function is the co-existence point of solving the legislation and judicial problem of essential joint crime. If we can distinguish strictly the essential joint crime and the essential joint offense, and then the essential joint crime and the random joint crime, then, in accordance with the requirements of the classification function the current legislation and judicial issues of the essential joint crime will fundamentally solved.This thesis consists of four parts, following the logical thinking of starting from the basic theory and logical starting point- to identify the problems of the essential joint crime that exist in theory and practice- analyzing the reason caused such problems- and then try to solve such problems.The first part is “the basic definition and classification function of essential joint crime.” Foreign criminal law theory of ideas about the concept of joint criminal necessary essential difference exists, has its roots in different foreign criminal law and criminal system theory and common crime legislation. Therefore, our criminal law is necessary common crime with Germany, Japan and the criminal law is in fact a necessary accomplice of two different concepts at different levels. Chinese criminal law should refer to the need of common crime criminal law provisions must be made a crime in order to constitute two or more persons, and it is a crime to determine the entity after conception. In the criminal law theory of China, the classification of essential joint crime and random joint crime has the function of distinguishing the methods of application of law between them. Unlike any common criminal necessary common crime, their only crime according to criminal law, the corresponding specification conviction and sentencing, without application of criminal law provisions on general principles generally common crime. This classification for the entire common crime(especially essential joint crime) theory and practice is important.The second part is “the problems of essential joint crime under the perspective of classification function.” From the perspective of common crime and any necessary classification of common crime, the crime of the necessary legislative and judicial co-existing in the following issues: the legislation, there is a more serious problem of duplicate legislation regarding the evaluation of common crime groups, some of gathering together legal punishment imperfect crime legislation configuration problems; on justice, conviction and sentencing for sexual crimes and some mob of common crime, there are many common problems, such as the law does not provide for the punishment of acts of sexual involvement incriminate barriers exist with sin common for sexual crimes and some mob joint criminal offense subject discretion not standardized, uneven and so on.The third part is “the reasons of the problems of essential joint crime under the perspective of classification function.” The reason our current necessary legislative and judicial co-exist crime problem lies: on the one hand, we never had to distinguish between the concept of functional and physical concepts necessary common crime, which is the root cause of the problem. On the other hand, China’s criminal law theory and practice of ignoring the need for joint function and role of criminal law crime classification together with any crime, which is the direct cause of the problem. This paper argues that the necessary extension of the Criminal Law refers only to common crime is actually German, Japanese Criminal necessary accomplice classified under “pure essential joint offense” of the extension, as “not pure essential joint offense,” should belong to China’s criminal law any common crime category. Accordingly, China’s criminal law should include only the necessary common criminal group of common crime and criminal penalties for all the necessary provisions of common crime mob participants, not including common sexual crime and criminal law penalties only part of the necessary participant mob crime.The fourth part is “the settlement of the problems of essential joint crime under the perspective of classification function.” Based on the current essential joint crime legislative and judicial co-existence problems and their causes, the paper believes that the legislation is necessary to solve a common crime, on the one hand need to transform the bloc’s common crime legislation to counteract repeated sub-evaluation, and the need to improve the necessary common crimes are committed by legal punishment mob configured to meet the necessary common crime with any common criminal classification of requirements; on the need of common crime solve the problem of justice, on the one hand the need to apply common criminal justice necessary to give special instructions, on the other hand does not need to belong to the need for a common crime committed and the mob made(that is “not pure essential joint offense”) shall apply to the administration of justice specific norms.