The Research On Qualification Offender Common Crime

The identification of qualification offender common crime is a relatively problematic issue in criminal theory.It relates to the relationship between qualification and common crime. There is no general provision on this problem in Chinese Criminal Law,which leads to the confusion of this problem in the judicial practice.In this article,the author will adopt the basic theory of common crime,to analyze in detail the effect of the identity to common crime,in order to compensate for the lack of legislation on the identification of qualification offender common crime.This article is divided into three parts,by comparing German-Japanese-Taiwan Criminal Law and Chinese Penal Code and its judicial interpretation,with the relevant theory on qualification offender and common crime,to analyze in detail qualification offender common crime.The first part mainly talks about qualification offender,by discussing the definition and classification of qualification in Criminal Law,to interpret the concept of qualification offender.And divide qualification offender into real qualification offender and unreal qualification offender.And then explore the nature of qualification offender.The nature of real qualification offender is legal interest infringement,the nature of unreal qualification offender is breach of duty.The second part aims to expound the principle of the identification of qualification offender common crime.This part interprets the basic theory of participation and perpetrator in common crime,makes comparison legal basis on the identification of the participation of qualification offender between China and continental regions.Through summarizing two different legislation modes,to analyze the rule of "illegal joint" and "individual responsibility".From the distinction and relationship between participation and perpetrator,punishment basis of participation,to probe the principle of participation and perpetrator.Chinese Penal Code should distinguish participation and perpetrator with standard of elements.Regarding the doctrine of restriction subordinate as the relationship between participation and perpetrator is more appropriate.Punishing participation under the theory of illicit participation is reasonable.No identity combine with identity,through the implementation of abetting acts, helping behavior,can indirectly infringe legal interest of real qualification offender,conforming the modified elements of real qualification offender,can be instigator and abettor of real qualification offender, reflecting the role of joint illegal.In the case of unreal qualification offender,the identity doesn’t affect the conviction,but only affect the addition and subtraction of sentences.When sentencing, no identity and identity should be treated differently,reflecting the role of individual responsibility.The third part makes discussion in detail about three cases of qualification offender common crime.There are real qualification offender common crime,unreal qualification offender common crime,and different identities jointly implement qualification offender crime.In the case of real qualification offender common crime,no identity can’t be joint perpetrator,but through the implementation of abetting acts, helping behavior,can be punished as instigator and abettor of real qualification offender.In the case of unreal qualification offender common crime,no identity can not be joint perpetrator or instigator or abettor.When no identity and identity jointly implement unreal qualification offender crime,punishing no identity as basic guilty is more appropriate.When no identity abet or help identity to implement unreal qualification offender crime,no identity can be instigator and abettor of unreal qualification offender,sentencing no identity as basic guilty is more reasonable.When different identities jointly commit a qualification offender crime,it’s a problem of concurrence qualification offender participation and perpetrator.According to the principles of imagination concurrence and the efficacy of the special part of Penal Code is superior than general provision,it’s more appropriate that different identities are punished as qualification offender perpetrator.