Research On The Cognizance And Punishment Of The Correspondence Offence

The article concerns about the cognizance and punishment of the correspondence offence,combinding with our criminal law and German and Japanese criminal law in the theoretical and practical aspects of the response to the issue of the correspondence offence,trying to make an analyzation and demonstration on the question of whether the correspondence offence of punishing both sides and the correspondence offence of punishing only one side constitute a joint crime and whether they should be punished according to the provisions of the general rules of the criminal law.Focusing on the definition and the constitutive requirements of the correspondence offence,the basic types of the correspondence offence,the relationship between the constitutive requirements and the joint crime,the essence and the scope of the punishment of the correspondence offence,trying to grasp the relationship between the correspondence offence and the joint crime from theoretical aspect,and to provide a solution to the difficulties in the punishment of the correspondence offence in judicial practice.First,on the definition of the correspondence offence,the correspondence offence is a sub conception of the indispensable joint crime,however,The notion of “ joint crime”in the indispensable joint crime is not the same as the joint crime in the criminal law of our country.The concept of the correspondence offence comes from the criminal law of Germany and Japan,and is a kind of the joint crime in a broad sense.It is not consistent with the narrow-sense joint crime adopted by ourcountry,which leads to the deviation from the understanding of the concept when using the theory of the joint crime in our country to solve the problem of the correspondence offence.Second,on the constitutive requirements of the correspondence offence,it requires the components of the multi subject,the correspondence relationship and the legalization.First,we should distinguish between the correspondence relationship and the victim relationship,it is not correct to make the victim subject included in the multi subject of the correspondence relationship,because the victim has not carry out any act that will infringe the legal interests,so the victim is not the subject of the correspondence offence.Second,distinguish between the correspondence act and the joint act,in a correspondence offence,one subject must be the object of the other subject at the same time,only when this interdependent relationship is satisfied,can a correspondence act be constituted,otherwise,the act can constitute the dispensable joint crime.Finally,it is necessary for at least one side to have the specific provisions of criminal law,which is called the legalization.On the types of the correspondence offence,the correspondence offence can be divided into three types according to it's conviction and punishment in the criminal law,they are the correspondence offence which have the same crime and penalty,the correspondence offence which have different kinds of crimes and penaltys,the correspondence offence which punishes only one side.Third,on the issue of whether the correspondence offence can constitute the joint crime,because the division standard of the correspondence offence and the joint crime are different,so there is no necessary connection between them,constituting the correspondence offence is not the essential prerequisite of the joint crime.For the correspondence offence of pubishing both sides,because the act of each side is criminalized by the criminal law,so it is the kind of which a joint crime is not constituted as a legal presupposition.Each side does the conduct of its own constitutive requirement,not to join the conduct of that of the other side.For the correspondence offence which pubishes only one side,because only one side's act constituted a crime,as for the other,when it meets the constitutive standard of the joint crime,it will be punished as theaccomplice according to the general rule of the criminal law.Forth,on the issue of the standard of the identification and the essence of the punishment of the joint crime,there are different viewpoints such as the theory of the legislator's mean,the theory of the stereotype participation and the theory of substantive standard.the theory of the legislator's mean infers the punishability of the correspondence offence from the aspect of the original meaning of the legislation,the theory of the stereotype participation adds to the restriction of the necessary participation on the basis of the theory of the legislator's mean,but the influence of the illegality of the participative on the punishability is ignored.The theory of substantive standard based on the independent illegality of accomplice,measuring the necessity of punishment in terms of the substantive illegality of criminal participation.The theory of the stereotype participation and the theory of substantive standard are not mutually exclusive,but work together on the identification of accomplices,showing a complementary and progressive relationship.On the essence of punishment for accomplice,the paper takes the view of causal accomplice that the accomplice indirectly infringes the legal interests by participating in the behavior of the principal offender,so the result is attributed to the participating act,besides,the purpose of the constitutive elements of crime can help further limit the scope of punishment for the correspondence offence.