Studies On The Strafbarkeit Of Neutral Aid

There are a lot of behavior which have harmless appearance in the life,but has promoted the violation of legal benefit objectively,such as the taxi driver knew that the passengers were heading to the destination in order to carry out the killing and still send the passengers to their destination,the bank clerk knew that the purpose of the remittance is to carry out a bribe and still help the customer remittance.Because of these behaviors are neutral and helpful,we call it the conduct of neutral aid.For the neutral aid in what circumstances can be punished,scholars have different views.The reason lies in the fact that the neutral aid is different from the general criminal help behavior,which is characterized by daily,repetitive,replaceable,one-sided help,and the illegality of helping object.It is also because of the widely existence of neutral help behavior in social life,if we punish all the neutral aid,will lead to the stagnation of social life,so there are very few scholars support the comprehensive punishment theory.The studies on the strafbarkeit of neutral aid began in Germany.Later,Japanese scholars began to study.With the development of scholars in Germany and Japan,the theory of the strafbarkeit of neutral aid is gradually diversified.It includes the theory of comprehensive punishment and the theory of partial punishment.Thetheory of partial punishment also concludes subjective theory,objective theory and compromise theory.Each theory has many scholars to support and oppose.There is not much research on the strafbarkeit of neutral aid in China.In recent years,due to the occurrence of Nora case makes neutral aid appeared in the public view.In China,the theorys of the strafbarkeit of neutral aidare not only include the compromise theory advocated by Professor Zhang Mingkai and Professor Li Hong,but also include the objective imputation theory advocated by Dr.Chen Hongbing.There is a big difference between the theories on the method to define which behavior should be punished.Through the analysis of China's current criminal law and the relevant theory,for the neutral aid,the compromise theory which is definite in this paper is more in line with the actual situation in China,and is more accurate to determine whether the neutral help behavior can be punished.This paper is divided into four parts:The first part defines the concept of neutral aid.This part introduced the origin and evolution of the neutrality aid theories and clarified the difference between neutral aid and helping behavior.At the same time,it pointed out that there is a lot of controversy in the determination of whether it can be punished or not is root in the neutrality,one-sided help and the illegality of helping object of the neutral aid.The second part explains and analyzes the various theories in the dispute of the the strafbarkeit of neutral aid.The theory of comprehensive punishment advocates a comprehensive punishment for neutral aid,however,it may lead to a serious impact on the normal operation of society,so it is criticized by most scholars.The partial punishment theory can be divided into two parts: one is the objective theory which advocates not consider the subjective aspects.another is the compromise theory which advocates that we should consider both the subjective aspect and the objective aspect.The third part is to find the theoretical basis and legislative basis of the comprehensivetheory and define the meaning of the comprehensivetheory.In order to determine whether the neutral aid can be punished,we not only need to judge whether the actor has a clear purpose and implement substantive behavior to promote the realization of infringement of legal interestsbased on the purpose,but also need to judge whether the actor's behavior is in the protection of business rules.The theory of crimes in common partly,the intermixed causation theory,the theory of accomplice result promotion provide theoretical basis for the compromisetheory.China's criminal law provides the legislative basis for the compromisetheory.The fourth part is to analyze the typical neutral aid in life.At the same time,we can test and verify whether the compromise theory can get the right answer in the case.