Approach To The Judicial Cognizance Of Withdrawal From Complicity

Withdrawal from complicity means that when parts of the accomplices give up continuing the practice of the crime,or they even try to prevent the occurrence of the criminal consequences,but they can not prevent other accomplices from committing the crime,and the criminal consequence comes to existence finally.The discussion of withdrawal from complicity is originated from discontinuance of complicity.In the situation of withdrawal,it could lead to injustice if the accomplices who give up crime are judged with accomplished responsibility,neither it could be proper if they are judged with the responsibility of discontinuance,because the result of crime has been generated.The theory of withdrawal from complicity is to solve this dilemma and,to make up for gaps in the theory of discontinuance of crime.There are many similarities between the withdrawal from complicity and the discontinuance of complicity.Therefore,scholars have made many efforts to try to explain the problems of withdrawal as the problems of discontinuance.However,due to the different theoretical bases and the original intentions and functions of the establishment of these two theories,the discontinuance of complicity has been unable to accommodate the withdrawal.Therefore,the withdrawal from complicity should be given the theoretical status independent of the discontinuance of complicity.When analyzing the theoretical categories of these two theories,we should always keep the original intentions of them in mind,and distinguish the similarities and differences between them.The time of occurrence of withdrawal and discontinuance is identical,and the withdrawal should also require the optional nature as discontinuance;the most important difference between the two is whether the criminal consequences occurred or not.The accomplices who give up the crime in discontinuance should make successful efforts to prevent the criminal result,but in the situation of the withdrawal,the efforts made by the accomplices should not be required,because the degrees of the efforts are difficult to measure and shall be considered as the specific circumstances for measurement of penalty.The theories of the withdrawal from complicity in Japan are comparatively developed and there are several representative theories.All of these theories consider that the accomplices who withdraw the crime should not be responsible for the behavior of the rest accomplices after the withdrawal,but the theoretical bases they rely on are different,making the differences in the conditions of establishment of the withdrawal and in the liability of it.When the accomplices subjectively arbitrarily give up continuing the implementation of the crime,and objectively completely stop the crime and make other accomplices realize it,the entire accomplice relationship has already been shaken.It shall be deemed as the withdrawal from complicity.Compared with the standards advocated by other theories,this standard is more concise and more conducive to encourage the accomplices to give up the crime in time.Moreover,taking the factors such as the periods of withdrawal?the statuses of accomplices in the accomplice relationship and the effort paid by the accomplices as the specific circumstances for measurement of penalty,the final punishment would fit the crime well.When dealing with different types of criminals in the withdrawal from complicity,there is no need to consider the factors such as the stages of the withdrawal and the roles in accomplices as the establishment essentials of withdrawal.Strictly following the subjective and objective conditions of establishment and paying the attention to exceptions are enough.The liabilities between the withdrawal and the discontinuance of complicity are different.The liability of the withdrawal from complicity should not be simply recognized as the liability of the discontinuance of complicity,otherwise it will lead to theoretical confusions.In judicial practice,it is necessary to construct an independent legal system of the withdrawal from complicity,referring to the liability nature and the punishment construction of the crime termination.It would perfect the legal system?encourage the criminals to give up crime and protect the social benefits.