Of Coerced Offenders

Coerced Offender is a special type of joint crime in Chinese criminal law,but there is no agreement on the identification and punishment of Coerced Offender in criminal law theory and criminal juridical practice.Starting from subjective elements of crime,this paper mainly focuses on the differences between the identification and punishment of coerced offender and these of other criminals,so as to put forward the unified standard for identification of coerced offender.This paper consists of several parts,including conceptual characteristics,the legal nature,the assertions and the punishment of the coerced offenders.In the first part,the paper elaborates on the concept and characteristics of coerced offenders from its origin.Based on the analysis and comparison of different existing viewpoints,it is concluded that the coerced offenders are not entirely willing to participating in the joint crime under the coercion of others.The passive nature of the actor involved in the crime is the characteristic of the coerced offender,a relatively less functional characteristic.The author holds that coerced offenders in joint crime may act as the major offender or minor offender.In addition,from the subjective point of view of the coerced offender,the paper concluded that it is the coercer that often act as the major offender and the coerced has little control on the commitment of the crime.Therefore,the characteristics of the coerced are not listed.Coerced offenders have passive characteristics of committing crime,to be specific,incomplete subjective willingness and objective negative behavior.In the second part,this paper studies the legal nature of the coerced offender,mainly from two aspects: the status of the independent accomplice of the coerced offender and whether the coerced offender can be regarded as a sentencing circumstance.After explaining the reasons for and against the independent status of coerced offender,the author agrees with the view that the coerced offender is a kind of independent covenant.In the part of the sentencing circumstances,the author compares the Anglo-American law system and the civil law system legislation and further analyzes the pros and cons of the prisoners in China as a sentencing situation.The third part is also an important chapter of this thesis,in which the identification standard is mainly demonstrated from the definition of coercion,the subjective and objective aspects of the coerced offender.Coercion must be seriously against the personal rights and interests,major property rights and interests of the coerced people and the stakeholders,with practical urgency.We use the general criteria of the community to determine the degree of coercion and its existence.Meanwhile,there are mainly three categories of the coerced people: the people with close relationship or close interests with the coerced,strangers and the coercion itself.The author elaborates on the possible situations of coerced offenders in terms of different objects.In the fourth part,after uniting the identification standard of the coerced offender,the author compares the coerced offender with the indirect offender,the principal,the accomplice,the force majeure and the emergency hedge.In this part,the author discusses in detail the difference between the coerced offender and the emergency hedge.The essential difference lies on whether the interest damage from the actor to the third party violates the intention of the dangerous manufacturer;and whether the benefit damaged by the actor is less than the benefit protected by him,which can be used as a supplementary standard.Clearly distinguishing the various forms of situations would help to sentence the coerced offenders more clearly in judicial practice.In the fifth part,the paper first discusses the theoretical foundation of the punishment of coerced offenders from the philosophical,ethical and criminal basis and further explores how to correctly understand the plot of the coerced offenders,how to sentence the coerced offenders according to the principle of punishment in judicial practice,as well as how to correctly apply the penalty to the coerced offenders.