Group Owner Non-Accomplice Establishment Condition And Its Responsibility Distribution

In the era of popularization of mobile communication terminals,the development of instant messaging software makes the communication between people more convenient and fast.Group chat enables many people to use the network to transmit text messages,files,voice and video communication in real time,effectively enhancing the communication between people today.Yet as the extension of social space,the network group has become a new era of information network of social organization form,group manager as a builder of this kind of social organization,the group have the responsibility of supervision and management,and also in group as a new derivative space of criminal behavior,and once the communications group members to implement illegal and criminal behavior,are under no obligation to exercise the supervision and management of the group manager can be an accomplice.In such cases where group manager constitutes an accomplice,the key to judicial practice is to determine whether group manager constitutes a crime,whether it can constitute an accomplice in the case of simple omission of group manager,and the distribution of responsibilities after the establishment of group manager.This article,from the case,in order to Qin,wang spread pornographic materials crime case as an example,the analysis of the case is representative of a disputed point,by comparing different point of view,combined with the relevant laws and regulations,the group of the main composition is not as an accomplice in the case of difficult problems were analyzed,and for practical departments in-depth understanding and decided the case in accordance with the law.The paper is divided into the following four parts:The first part is case introduction.This paper introduces the basic case of this case.The behavior of qin in this case can be regarded as a typical case of group manager as an accomplice of omission,but the judgment of this case actually does not meet the requirements of the judicial interpretation on the quantity of the crime of spreading obscene materials,that is,group manager's simple omission should also meet the quantity standard.According to this representative case,clarify the existing differences of opinion and controversial focus.The difference of opinion mainly includes three aspects: the principal or accessory of a joint crime in the establishment of qin,the culpability that should be borne by a separate crime if qin is not an accomplice,and the opinion that qin is not an accomplice in the establishment of a crime.According to different opinions,the focus of dispute is summarized as follows:1.Can the impure omission constitute an accomplice? 2.Group manager constitutes an accomplice by omission,what is its role in crime? 3.What is the obligation of group manager? How can inaction be justified? 4.Even if group manager performs its obligation,it is still "knowingly" releasing illegal information.How to eliminate the influence?The second part is scientific analysis.This part is mainly based on the controversial issues involved in the case,combined with the theoretical analysis of various academic theories,to find a theoretical basis for the final conclusion can be supported.This part is divided into four parts:(1)to take non-feasance as the theoretical basis for the formation of a joint crime.According to the existing theories in the field of criminal law,three conditions for non-feasance to constitute an accomplice are listed.The objective condition is to implement the behavior of inaction;The subjective condition is that the person who does not act and the person who carries out it have the connection of intention.(2)the non-feasance act constitutes the standard for distinguishing the joint principal offender or the narrow sense accomplice.This part is mainly to define why group manager is also a omission,and why some group manager constitutes a joint principal offender and some a helper offender.In judging the criminal responsibility of group manager,we should not only look at its objective behavior,but also pay attention to its subjective state and influence on the outcome of the crime,etc.(3)relevant principles as obligations.The premise of the crime of omission is the existence of obligation,and the theory as the basis of obligation has the monism of obligation and the dichotomy of obligation.Based on this basis,it explores the content of group manager responsibility as an obligation and the purpose of stipulating group manager as an obligation.(4)not acting as an accomplice and carrying out the responsibility distribution of the actor.Firstly,by comparing the criminal legislation provisions of various countries on the accomplice of omission,the author draws a conclusion that the punishment rules of omission are generally lighter.Secondly,by comparing the theories of "responsibility accomplice","illegal accomplice" and "cause and effect accomplice",it is determined that the problem of responsibility distribution of group manager non-accomplice is solved on the theoretical basis of the theory of cause and effect accomplice.The third part is the analysis and conclusion of the case.Differences on this part is mainly aimed at the various opinions gives the author's opinion,this article selects cases Qin Mou as im group of group of the Lord,in the group such as actor wang mou constitute spread pornographic materials crime,but due to the number of pornographic video document upload in groups did not reach the judicial interpretation stipulation on quantity,so Qin Mou don't set up the crime;However,due to the representativeness of qin's behavior,the following part still takes qin's behavior as the typical analysis of this kind of crime,that is,the omission similar to qin's behavior can be a joint crime,because qin has the obligation as an objective also implemented the omission,subjectively there is at least laissez-faire intentional;Combined with the status of a certain qin in the joint crime,the actual degree of participation in the crime and the cause of harm to the results of the crime,a certain qin can only constitute a crime of omission to help;Since it is judged that a certain qin constitutes a crime of omission as a helper,certain standards are needed for the punishment of a certain qin.The current "partial implementation of full responsibility" does not apply to such cases,which will result in unfair judicial judgment.Therefore,the principle of "double light punishment" proposed by other scholars is cited here.The fourth part is the research inspiration of this case.