A Study On The Issue Of Surplus Behavior Of Joint Offence

The issue of surplus behavior of joint of fence is an important problem in the criminal law theory research, while it is compara tively few involved in the existing research results. In judicial p ractice, the situati on of surplus behavior of joint offence is relatively common, while it is not precisely defined in Chinese crim inal law theory. Whether the issue of surplus behavior of jo int offence can be accurately identified in judicial practice, depends on the propriety of sentence and conviction in these situations during the trial. Conside ring there are few studies for the iss ue of surplus behavior of joint of fence in the existing crim inal law theory, and the recognition standards for the issue of surplus behavior of joint offence is still not unique in judicial practice, the recognition standards for the su rplus behavior of joint of fence and its criminal responsibility recognition are studied.Firstly, two typical cases in the surplus behavior of jo int offence are introduced. The first case does not belong to the surplus be havior of joint offence, and the second one does. By analyzing the results and the critical focus of these two cases, the legal issues to be solved in this paper are issued, namely the recognition standards of the surplus behavior of joint offence and whether the one who doesn’t exceed should bear criminal responsibility for the excess. Secondly, different views in theorists about the recognition standards of surplus behavior of joint offence and issue of bearing criminal responsibilities by those who have surp lus behaviors are in troduced. The common views of these criminal law scholars are summarized and reviewed. After analyses, the view of this paper is: to determinate whether an act is surplus behavior, there are two ways available. The first way mainly focuses on the objective aspect of acts, especially judging whether the acts of th e surplus behavior of perpet rator and the acts of other conspirator are superposed from tatbestand. The second way m ainly focuses on the subjective aspect of acts, es pecially judging whet her it agrees with the intention of joint crime from cognition and will. W hether one who doesn’t exceed should take the rap for the excess of th e one who exceeds, sh ould be judged from two ways, namely from objective conditions and subjective condi tions. From the objective conditions, it is judged by whether there is physical a nd psychological typed cau sality between the common part and the excess part. Those w ho don’t exceed aren’t responsible for theexcess without objective conditions. If the objective co nditions are satisfied, the subjective attitude to th e excess part of those who doesn’ t exceed need to be further inspecting, namely whether there is any fa ult in the excess of those who don’t exceed to whom exceed. If intentional, namely those who does not exceed have recognized the excess, and want it to happen or let it happen, it means that the acts of the perpetrator is not beyond the scope of common crime, so there is no excess or over-limit problem; if it is neg ligence, it m eans that thos e who do not exceed h ave fault fo r the excess. Therefore, those who do not exceed should be responsible for the excess, but don’ t bear the responsibility of intentional crime, because those who exceed is not intentional for the exces s. If it is an accident, it means that there is no possibility for those who do not excess to know or foresee for the excess. T herefore, there is no need for those who do not excess to bear crim inal responsibility for the excess. Finally, the problems brought by typical case are solved with this paper’s viewpoints.