On Regarding Aiding Act As Principal Offender

“Regarding aiding act as principal offender”,that considers aiding act as act of perpetrating to convict separately,is a kind of the legal fiction essentially.The legislative model of “regarding aiding act as principal offender”,that is different from traditional criminal law theory,causes extensive social discussion along with the expanding of the scale of legislation,that is tested inadequately by domestic scholars.So,author deems it necessary to research deeply the special legislative phenomenon.Through investigate of the legislative present situation of “regarding aiding act as principal offender”,it is to be found that the legislative model meets many problems in legislation and judicial application.Through the summary of the type of “regarding aiding act as principal offender”,we can find that the regulations of “regarding aiding act as principal offender” includes normality,decisive role,type diversity,relative concentration,etc.But it has the shortcoming of unreasonable charges connection,unspecific of crime description,etc.Because the legislative model of “regarding aiding act as principal offender” is different from traditional criminal law theory,so it certainly produces some problems in judicial practice.Through the observation of the judicial practice of “regarding aiding act as principal offender”,we can find the problems of low application rate,difficult to deal with the action of the help in and deal with the accessory of the related crime.“Regarding aiding act as principal offender”,is not the arbitrary legislation,but has profound foundation of legitimacy and necessity.The legitimacy of “regarding aiding act as principal offender” includes the binary participation system based on concept of the limited principal offender,the rationality of the judgment of the illegality of behavior itself,the relative independence of joint offense.The necessity of “regarding aiding act as principal offender” includes the requirement of the criminal policy of tempering justice with mercy,the consideration of the criminal purpose of active prevention,and overcome the obstacle of accomplice attribute to achieve the balance between crime and punishment.Besides,the limit of legitimacy of “Regarding aiding act as principal offender” should be definition from legislation and judicial application.For the legislative model of “regarding aiding act as principal offender”,we can limit but not ban it in legislation.On the one hand we should prevent the insufficient of typed of conviction to inadequate protection of legal interest,but on the other we can not regard aiding act as principal offender excessively,thus cause the confusion of criminal system.On the legislation of “regarding aiding act as principal offender”,we should follow the principle of criminal modesty,the protection of legal interest,scientific legislation.The legislative standard of “regarding aiding act as principal offender” is the aiding act of stereotyping,decisive role in crime and serious dangerous of infringement to legal interest.During the applying of “regarding aiding act as principal offender”,we should develop the mechanism of provisos in criminal law whose role is out of crime,and together all the factors to judge the “serious matters”.The crime,that is object of knowing,should adopt the meaning of criminal act,and pay attention to relationship among crimes.The “knowing” contains “sure” and “ought to know” and the chain of evidence should be beyond reasonable doubt and allow the litigant to refute when judging the “knowing”.At last,when judging the punishment of the crime of helping the crime of information network,to neutral business behavior in the network,we should insist the principle of subject and object consistent,and judge whether the behavior makes the danger that is not tolerated by law according to the objective attribution theory objectively.