On Identification Of The Gang Rape Plot

In China, gang rape is not an independent offense, but only appears in the form ofaggravated offense by circumstances, without clear definition in the relevant laws and judicialinterpretations. The complexity of the gang rape offense results in the continual debate in thetheoretical circle on how to identify the gang rape plot and the own free will in the practice.The correct identification of gang rape plot is of great practical significance to accuratelyapply the law and guarantee the human rights. Beginning from a real case and the issue indispute in the case identification, this thesis adheres to the principle of integrating theory withpractice and makes legal analysis on the theoretical issue in dispute, coming to the solution tothe case.Specifically, this thesis analyzes various criminal legislations on gang rape offensecharacterized with simple charges and heavy punishment through firstly hackling thelegislation conditions in many countries, so as to conclude the necessity of conceptidentification, through which the thesis concludes the characteristics of the gang rape insubjective, objective, objective behavior and the victim and then provides the theoreticalfoundation for the settlement of the case through the analysis of the legal nature of gang rapeoffense. First, belonging to aggravated offense by circumstances and the sentencing plot ofaggravating legal sentence, gang rape can only be described by whether established orpossessing, unable to be differentiated in accomplishment or attempt; Second, through theanalysis of joint offense of gang rape and in combination with the own characteristics, thisthesis proposes the standards for judging the establishment of gang rape plot: the fact that twoor more doers with the ability to take criminal responsibility commit (other than accomplish)rape or rape behavior for the purpose of gang rape can be identified with the gang rape plot.Whether the gang rape plot has or not has nothing to do with the number of persons whoactually accomplish the rape or rape behavior, nor does the stop form of the act after theimplementation by at least two persons. In addition, this thesis still holds that there isattempted circumstance in gang rape offense and that the judgment on the stop form hassomething to do with essential offense, nothing to do with the gang rape plot, both of whichare in two levels and should not be confused; third, through the legal analysis of thepersonally offending joint offense of gang rape and in combination with attribution theory for joint offense and personal offense;this thesis concludes that the personally offendingcharacteristic of rape offense can not surmount the general attribution principle of jointoffense and the rape offense still applies the liability assuming way of “partial behaviors whilefull responsibility”;clarifying the thought for the application of joint offense theory in gangrape offense.