| The joint crime is known as the "Chapter of Despair" in the criminal law theory, however, once intertwined with constituent status, the problems shall become more difficult, so it does attract numerous Chinese and foreign scholars to pursue it, which presented a theoretical discussion of frenzy since the publication of "Joint Crime and Constituent status" written by the teacher Ma Kechang in 1986. There is no any special provisions of accomplice and constituent status in China’s general criminal law, and only referring some regulations in the specific provisions. Although the series of judicial interpretations released since 1985 have a certain progressive significance, with the increase of the duty crime cases in recent years, it can’t cope with the increasingly complex forms of crime. The too much theory fails to provide a unified standard criterions for the conviction, which shall be the viewpoints being highly critical before appearing a new solution.Japan took the road of a top-down reform after the Meiji Reformation, and in the law field, it preferred to learn from Europe instead of China, which was the start point of the process of legal modernization. The old criminal law during the period of Wave SuoNaDe was based on the French Criminal Code, in which regulated the accomplice theory that was based on the executive behavior. The processing principle on the problem of accomplice and constituent status, which was called as "individual role of the recognized aggravated constituent status" was finally determined after being revised twice. The current revision of the law was conducted as a result of the lack of theory for failing to regulate the constituent status. Then in the process of turning to learn from German, since the then Germany Criminal Code also failed to regulate the constituent status, nor the Japan’s draft covered this content, instead being explained by its theory. Since then, Japan made the joint role of the constituent identity clear in the suggestion of a professor in Berlin University, which developed into the current provisions of article 65 of the criminal law after several times of revision. The concept of the constituent status and gravity-oriented status proposed in this law made up for the deficiency of the old criminal law, however, since the first article embodied the principle of accomplice properties, while the second article followed the principle of accomplice independence, whose absolute contradiction caused the long-term problems of Japan’s accomplice and identity, also sparked intense discussion in academia."Formal Distinguish Opinion" and the "Sentence Opinion" eased the contradictions between them in a certain extent, however, because it failed to substantially distinguish the actual role of identity, it’s inevitable to produce the injustice of the conviction and sentencing. Seen from the evolution of its legislation of the penal code, in the process of westernization of the legislation, Japan learned from the essence of western European legislation, while with the development of the judicial substantiation and refinement and the suggestion of the "Essence Distinguish Opinion", which was based on the opinion of "Consequence without Value", Japan advocated the concept of "illegal status and responsibility status", which was supported by the professors of Atsushi Yamaguchi and Noriyuki Nishida, so there is no doubt that it provided a good idea for solving the problem of accomplice and identity in China.Therefore, from the perspective of comparison, this paper shall first analyze the China problem, judicial practice and the relevant solving theory of the accomplice and identity under the constitution system of the four elements; Secondly, through the comparison of the legislation history on the Japanese accomplice and identity, theoretical development, and solutions, introduce the concept of "illegal identity and responsibility identity" to specifically solve the problems existing in the practice of our country. |
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