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On Withdrawal From Complicity

Posted on:2016-02-01Degree:MasterType:Thesis
Country:ChinaCandidate:L Y JiFull Text:PDF
GTID:2296330461989987Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Theory of Complicity plays a crucial role in the criminal law system of any country. Due to the complexity and diversity of its own theory and judicial practice, there are rather many studies being conducted in China and abroad. Obviously, just because of that, the lagging feature of law gradually appears, especially one embarrassing circumstance that although one or more accomplices who have an intention to withdraw from complicity have actually made a sincere effort to prevent criminal consequences or other accomplices’ continuation of actus reus, the final criminal consequence still comes into existence and the offense is accomplished. In the past, as to the above issue, quite a few countries including China has addressed it in the light of stipulations about discontinued offense by using judicial discretion. However, this approach has, more often than not, engendered a series of disadvantages attracting scholars’ attention and deliberation, such as adverse influence upon criminal policies, non-thoroughness of related punishment principles and non-uniformity of application of law, etc.So in order to resolve such an embarrassment, the concept of Withdrawal from Complicity was proposed for the first time by Japanese criminal scholar OOTSUKA HITOSHI. This theory allows those accomplices who have made a sincere departure endeavor of the effect of withdrawal. That is to say, how to punish those withdrawing accomplices shall be distinguished from the treatment of discontinued ones. The establishment essentials of discontinued offenders will no longer be imposed upon the shoulders of those withdrawing ones for the sake of encouraging accomplices to conduct withdrawal, genuinely corresponding with the modest restraining value of criminal law as well as protecting the legal interest in a more timely and effective way. This system has functioned as building a golden bridge for those offenders sincerely penitent alongside with discontinued offense. Therefore, we would like to say that it is really a creative progress deserving our affirmation and reference.In the past few years, some scholars in China have carried out some researches on Withdrawal from Complicity. Nonetheless, most of those researches rest on the conceptual analysis or simple introduction of the current situation of foreign studies. The author has deliberated on the penal provision or precedents of some typical countries like Japan, the Great Britain and the United States and intended to incorporate some of their rationality and necessity into our own criminal system under the doctrine of guaranteeing legal uniformity, with the expectation to improve our own system of criminal law.Firstly, the thesis has made a general investigation and analysis covering its theoretical origins, definition (primarily the distinction from discontinued offense) and the justification value analysis of our legal system of absorbing such a theory. Secondly, the thesis proceeds to argue and illustrate the theory’s establishment essentials from three perspectives such as space-time, objective and subjective requirements. In the process of stating the objective element, the author has elaborated several representative points of view embracing lack of common intention, permission of obstacle attempt, separation of causality and exemption of complicity, etc. Through comparing their strengths and weakness and observing characteristics of our criminal legal system, reasonably appropriate withdrawal essentials would be naturally obtained. Thirdly, in accordance with different types of complicity, the thesis continues to expound the withdrawal principles and punishment criteria so as to draw out trains of thought and strategies in line with China.By means of the above argumentation, with regard to several specific controversies, the author has solved them one by one as follows:the phrase of occurrence is only confined to the course from the establishment of complicity to accomplishment of offense, denying the possibility of withdrawal following the accomplishment before the appearance of consequences; the requirement of "voluntary mental state" is not mandatory; the requirement of "sincere effort" shall be made on a case-by-case basis. Finally, the author has envisaged the construction of Withdrawal from Complicity in China by means of drawing lessons from methods of other countries setting up a pattern of general and specific rules together.
Keywords/Search Tags:Withdrawal from Complicity, Discontinuance of Complicity, Establishment essentials, Punishment Principles
PDF Full Text Request
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