Reflection And Criticism On The Traditional Theory Of Accessory Criminal Law

Since the introduction of the 79 Criminal Law,the debate on the manifestation form of criminal law has not been stopped.Under the current background of comprehensively promoting the rule of law and deepening the judicial reform,the perfection of the form of criminal law is more worthy of our attention and research,especially it is urgent to clarify the rightful place of the accessory criminal law in the criminal law system.More importantly,through the research on the theory of accessory criminal law,we can further clarify the intrinsic value of the criminal law behind the accessory criminal law and regard it as the mental basis for guiding the criminal legislation in the future to promote the continuous development of the rule of law.This article adopts progressive argument structure which introduces the theme of accessory criminal law by the preface,gradually makes a detailed comparison,analysis,demonstration in the main body and come to the core point of view at the end of the conclusion.The main body can be divided into the following four parts:In the first part,the article begins with the concept of the accessory criminal law and compares and analyzes three kinds of views about it.The author thinks that the accessory criminal law refers to the creative criminal law stipulated in the non-criminal law which must be a supplement or amendment to the content of the criminal law,and its specific content and form should not be absolute.In the second part,the article reviews the legislative evolution of accessory criminal law in our country and the legislation status of accessory criminal law in other countries and regions.During the period of the 79 Criminal Law of our country,accessory criminal law existed widely and played an important complementary role to the penal code;during the period of the 97 Criminal Law,there is no accessory criminal law in our country and the manifestation form of criminal law has been developed in the direction of the unified penal code.However,in other major countries and regions,accessory criminal law is an important manifestation form of criminal law.These accessory criminal laws give first place to the specific provisions of criminal,which basically stipulate specific crime and statutory sentence and generally provide for statutory crime.In the third part,the article analyzes,reflects and criticizes the opposite views of whether accessory criminal law should exist.Most scholars believe that statutory crime should be prescribed in the accessory criminal law instead of the penal code,but some scholars still adhere to the unity of the criminal code mode.The former mainly shows the drawbacks of single penal code and advantage of accessory criminal law from six aspects,whereas the latter have targeted to refute these views and point out the other important value of the unified penal code.However,both sides of the argument is standing on the functional perspective and also has considerable problems.Therefore,this article draws an unexpected conclusion that the accessory criminal law and the unified penal code have no obvious advantages compared with the other.In the fourth part,the article starts with the classification of natural crime and statutory crime and tries to explore the rationality of the existence of accessory criminal law from the level of substantial value of criminal law.In people's minds,the strong anti-ethical nature of natural crime means that there is an obvious essential difference between natural crime and statutory crime,therefore natural crime also should be independent from general violations and concentrated in the penal code;meanwhile,the weak anti-ethical nature of statutory crime means that there is a significant connection between statutory crime and general violations and it is easy to regard the criminal penalty as a supplementary means of civil and administrative penalty,therefore statutory crime will be scattered in the accessory criminal law and closely connected with general violations.Thus,the accessory criminal law reflects the principal of modesty of criminal law,but the term "modesty" has some problems and it is obviously more reasonable to replace it with "necessity".The emergence of accessory criminal law is the inevitable result of insisting and carrying out the necessity principle of criminal law.However,to implement the necessity principle of criminal law into the legislative activity,we must constantly improve the legislation democracy to ensure that people's general knowledge,common sense and normal emotions can truly reflect in the legislation of criminal law.