Study On "Regarding Aiding Act As Perpetrating Act"

The meaning of “regarding aiding act as perpetrating act” is that the occasion under which legislators regulate the aiding act as another independent perpetrating act according to the needs of crime prevention and society protection. And it will be a new crime with independent punishment. The factors of this kind of aiding act has to satisfy are as following: the relatively independent invasion of legal interest, the severity of invasion and the fixed features. In Chinese criminal code, there are several crimes of this kind, including the crime of aid in organizing prostitution, the crime of bribery-pander, the crime of helping terrorism, the crime of aiding Information Networks crime and so forth. Since there is a great deficiency in Chinese criminal law theory study about this area, many problems have occurred in both legislative and judicial action. Therefore, this article aims at exploring the legislative principles and standards, as well as the conviction problems in judicial practice, based on the relevant crimes in both Chinese criminal code and the 9thAmendment.The first section of this article is study on the theory basis of “regarding aiding act as perpetrating act”. Although there have been many relevant crimes in criminal code, some criminal law scholars are still hold a negative attitude. The accomplice crime theory in civil law system can be divided into two categories, unitary and distinguished. The former one is based on the expanded conception of perpetrator and the latter one is based on the restricted conception of perpetration. In my opinion, we should adopt the latter one. Under the theory of dual invaluable act, aiding act has a rather independent criminal illegality. In order to avoid the limitation of attaching the aiding act to perpetrating act in criminalization, as well as satisfying the requirement of criminal policy and conviction foreseeability of civils, we should regard the aiding act which meets the criterion as perpetrating act in a new crime.The second section of this article is exploration in the problems of “regarding aiding act as perpetrating act”. In terms of legislation, there is a deficiency in the guidance of legislation ideology. And it is not clear that under what criterion the aiding act can be regarded as perpetrating act. After the legislature regulates the new crime, there is always a link gap between different crimes which makes an inconsistent crime system.In terms of judicature, there are also many problems in the specific process of convicting a crime, such as the crime of aid in organizing prostitution and the crime of aiding Information Networks crime.The third section of this article is the advice on legislature reconstructing and the conviction o specific crimes. According to the restraining spirit of criminal law, legislators have to be in accordance with the conception of restriction and legal interest protection when they are regulating relevant crimes and punishments. Only if the aiding act satisfies the legislation standard and it is necessary to be regulated, can the legislator add a new separate crime. During the process of regulating this kind of crime, the legislature also has to meet a consistent crime system. When we are convicting the crime of aid in organizing prostitution, it is important to distinguish between the perpetrator of this crime and the abettor of the organizing prostitution crime. Both the establishment and accomplishment of the latter one are not the prerequisite of the former one. When we are convicting the crime of aiding Information Networks crime, if the act meets the factor of perpetrator, then the actor should be charged with Information Networks crime instead of the aiding crime. In the crime of aiding Information Networks crime, the usual neutral aiding act in networks can not be treated as criminal behavior here. When we are evaluating the severity of the criminal case, all the surrounding elements, such as the counts of crimes, the amount of money involved, the invasion of legal interest and so on.