The Criminal Participation System Of China Should Adhere To Formal Concept Of Perpetrator

It is the original purport of criminal participation system of distinguishing between perpetrator and accomplice that to distinguish perpetrator from accomplice by criterion of constitutive elements and to take formal concept of perpetrator.As the typical representatives of the system of distinguishing between perpetrator and accomplice,German and Japan gradually abandon the formal criterion of constitutive elements and take the substantial criterion of effect judgement,it is due to their special legislation of joint crime.The criminal law of Germany and Japan all directly link the punishment of the criminal participant to the division of labor in the joint crime,and stipulate that an accomplice should be punished lighter than a perpetrator.In this kind of legislation,that a criminal participant is identified as a perpetrator or an accomplice will directly determine the severity of the punishment.If sticking to the form concept of perpetrator,only those who implement the crime personally are perpetrators,and those who did not perpetrator the crime personally but play an important role in the completion of a crime can only be identified as accomplices and was sentenced to a lighter punishment.This will lead to rationality in criminal punishment.Just in order to carry out the rationality of criminal punishment,the criminal theory of German and Japan gradually abandon the criterion of constitutive requirements in the distinction between the perpetrator and the accomplice,and take the role of participation as the criterion,thus to avoid the imbalance of crime and punishment caused by taking formal concept of perpetrator.China's legislation is different from that of German and Japan.It do not link the punishment of criminal participant to their labor in joint crime,so whatever a criminal participant is identified as a perpetrator or an accomplice in the type of behavior,he will be punished according to the role that he played in joint crime.Therefore,in the criminal law of China,there is no necessity to take substantial concept of perpetrator in order to realize the rationality of the criminal punishment.On the contrary,adhering to the formal concept of perpetrator is not only consistent with the theoretical logic of system of distinguishing between perpetrator and accomplice,but also is helpful to maintain the finality of constitutive elements and to ensure the principal of legality.The formal concept of perpetrator is also more clear and more operable than the concept of "important role" and “domination of criminal facts” in the substantive concept of perpetrator.To construct a criminal participation system based on the formal concept of perpetrator can also make the theoretical system more clear.To adhere to the form concept of perpetrator in the criminal law of China means to take implementation of constitutive behavior personally as the criterion for distinction between perpetrator and accomplice,so concepts of "joint perpetrators based on conspiracy","the perpetrator behind other perpetrator”,and “indirect perpetrator” should all be rejected.We can identify participants as abettor or organizer according to the different circumstances,then punish them as a principal according to the criminal law.