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Study On The Coerced Offender In The Criminal Law

Posted on:2018-10-10Degree:MasterType:Thesis
Country:ChinaCandidate:F ChenFull Text:PDF
GTID:2346330515990032Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
It is a special type of common law in criminal law in China,which is the codification of the policy of "never asking for trouble" and has experienced a long and tortuous legislative evolution.Although there are only simple legislative expressions of the law of the criminals,there are many controversies about the theoretical research and judicial practice of the accomplice under duress.By combing the controversial issues in these theories and practice,this paper examines and draws on the relatively mature theory of coercion in the criminal law of foreign countries,analyzes the theoretical basis of the criminal responsibility of the criminals,and puts forward some ways to solve the difficulties of the criminals research,with a view to the threat of criminals in China’s current judicial application to provide a more complete theoretical support.The full text is divided into five parts to discuss,a total of 37,000 words.The first part of this paper discusses the historical development of the accomplice under duress.Through the longitudinal study,the law of the accomplice under duress of the expression is improving day by day.From the ancient law of "threat from amnesty" expression to the development of modern new democratic revolution during the "threat never ask" criminal policy,and then evolved into the modern 1979 criminal law " the accomplice to reduce or exempt from punishment",and finally again to the1997 criminal law "should be in accordance with his crime to reduce or exempt from punishment",the accomplice under duress goes through different historical stages of development before the formation of today’s provisions.The lenient treatment of accomplice under duress,not only in the provisions of the criminal law has a clear provision,but also scatters in some judicial interpretation.Compared with the previous regulations,the relevant provisions of the accomplice under duress is gradually systematization,and its scope of application has been expanded.The second part of this article is from the perspective of coercion outside the practice of discussion.Through horizontal inspection,one is the civil law criminal law represented by German and Japanese.In their Criminal Law,the coercive behavior is implied in the emergency shelter,and expressly stipulates that it has the legal nature of exclusion and exemption.The other is the Anglo-American on behalf of the Anglo-American law criminal law,which coercion in the common law provisions is adefense.Comparing the two legal systems with the accomplice under duress,we can find that the former is not blame the coercive criminal law evaluation,and the latter does not rule out its illegality,as a criminal act to be hit.The difference lies in the different legal system between the criminal theory system and the legislative value orientation there is a huge difference.The third part of this article discusses the theoretical problems of the existence of the accomplice under duress.Respectively,from the accomplice under duress of the criminal policy basis,classification attribution,legal nature of the three levels of narrative.Whether it should be the "policy of failing to ask" as the basis for the policy of the perpetrators,whether it should adhere to the classification of the classification of accomplice classification methods,and whether the principal offender is a class of independent co-perpetrators,or even cancel its legal provisions of the three issues,and to sort out the views and opinions of scholars on these issues.In contrast,the various doctrines are not impeccable,and the legislative provisions of the contingent should not be arbitrarily changed,and the legislation should be perfected on the basis of the existing theory.The fourth part of this article from the perspective of the existence of the practice of the accomplice under duress discusses.On the basis of empirical investigation,through the specific data and cases,the author analyzes four kinds of problems mainly in the application of judicial practice.In the case of conviction,the practice of "coerced" is ambiguous due to the confusion of the legislation and the academic debate.Although the accomplice under duress and the emergency hedge are in the case of being threatened,they have made a wrong act in the criminal law.We should clarify the boundaries between the two.In the sentencing,the "crime plot" is too broad and lacks maneuverability,so it is necessary to refine the scope of the "crime plot".Combining with the theory of common crime,we can clarify the idea of dealing with criminal responsibility,make the application of the accomplice under duress in practice perfect.The fifth part of this article is from the accomplice under duress of the theory and practice to resolve the perspective of the discussion.First of all,it should be sure that the value of the existence of the accomplice under duress,and determine the criminal responsibility of the theoretical basis,which including the relative freedom of will is the basis of philosophy,and expect the possibility of the basis of punishment.Then,in adhering to the premise of our country’s theory of crime,in the theoretical level,theaccomplice under duress has independent legal status of the co-perpetrators;we should continue to recognize the "threat never ask" is the policy basis for threatening offenders,and adhere to the role of our main features mixed classification of division of labor.Finally,in the practical level,under the guidance of the principle of reunification of subjective and objective,the author points out "coercion" from the two aspects of subjective and objective,insisting on the defendant’s personal standard.Combining with the nature of criminal involvement,the size of the work,the length of time to focus on four aspects of comprehensive judgment "crime plot" range.In addition,it should be from the time,purpose,whether there are alternative means,the law to measure four aspects,the distinction between the accomplice under duress and emergency hedge boundaries.According to part of the crime common doctrine,if the coercion is from the person without criminal responsibility,the two still constitute a common crime.The perpetrator should be convicted on specific charges,and we should consider the "coercion" of the crime situation in the sentencing.
Keywords/Search Tags:accomplice under duress, duress, legal nature, act of rescue, anticipated possibility
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