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The Theory Of Withdrawing From The Complicity

Posted on:2020-11-10Degree:MasterType:Thesis
Country:ChinaCandidate:C X LuFull Text:PDF
GTID:2416330623453672Subject:Criminal law
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Domestic and foreign scholars have conducted different degrees of research on the issue of withdrawing from the complicity,but there has never been a unified understanding of the theoretical positioning of withdrawing from the complicity and the criteria for judging withdrawing from the complicity.The theoretical positioning of withdrawing from the complicity concerns whether to modify the the criminal law of our country in order to apply the theory of withdrawing from the complicity.At the same time,the criteria for withdrawing from the complicity are not uniform,leading to judicial practice in the face of the problem of withdrawing from the complicity.In order to solve the above two problems and provide a path choice for the judicial application of withdrawing from the complicity,the author has conducted an in-depth discussion on the theory of withdrawing from the complicity.The article is divided into three parts.The first chapter mainly expounds the theoretical cornerstone of withdrawing from the complicity,clarifying the premise of withdrawing from the complicity,the path of thinking of withdrawing from the complicity and the general theory about withdrawing from the complicity.The formation of the accomplice relationship is the precondition for withdrawing from the complicity.As general of the common crime essential theory,joint behavior theory advocates the joint behavior of the human beings to form the accomplice relationship,so joint behavior theory is the premise of withdrawing from the complicity.The accomplice punishment foundation theory solves why to punish the accomplice,also “measuring” the boundary of punishment.This can reverse the reason why the accomplice can withdraw from the accomplice relationship and its responsibility.The causal accomplice theory is the general of the accomplice punishment foundation theory.So it provides a path of thinking for the solution of withdrawing from the complicity.The general theory about withdrawing from the complicity refers to the theoretical sum of the theoretical positioning,concept and occurrence stages of withdrawing from the complicity.There are different opinions on the theoretical positioning,concept and occurrence stages of withdrawing from the complicity.After analysis of different opinions,this article concludes that the theory of withdrawing from the complicity is not the remedy theory of complicity discontinuance theory,and its purpose is to solve the responsibility of the disengaged person.Withdrawing from the complicity is the theory level different from complicity discontinuance.And the judgment of withdrawing from the complicity is before that of complicity discontinuance.Withdrawing from the complicity refers to the situation in which some accomplices cut off their causal relationship with the result of the harm,withdrawing from the accomplice relationship,and other complicity people continue to commit crimes.Withdrawing from the complicity can occur at any stage of the entire crime development.The second chapter mainly discusses the judging criteria for withdrawing from the complicity.On the issue of the judging criteria for withdrawing from the complicity,there are common meaning lacking theory,applying obstacle abortive theory,cut-off causal theory,abolishing complicity theory and revised cut-off causal theory.Through the comparative analysis of the above-mentioned doctrines,the author adopts the revised causality cut-off theory.The judging criterion for withdrawing from the complicity is to cut off the causal relationship in the criminal law,and the judgment of the cut-off is not a factual judgment but a value judgment.The author transforms the problem of causality cut-off into the problem of elimination of the influence of causality,and then simulates the influence of causal force by the linear deceleration movement in the physical field,and advocate eliminating causal force and applying reaction force to exert the reaction force before the disengagement,thus cutting off the causal relationship.It is advocated that judging whether the causal relationship in criminal law is cut off should comprehensively consider the spatio-temporal situation of disengagement,the status and role of the disengaged person in the joint crime,and the disengagement behavior according to the general experience of the society,from the two methods of eliminating causal force and apply reaction force.As for the autonomy of the disengaged person,the "sincere effort" and the "recognition from the meaning and the recognition",it is only a reference factor to help determine whether the causal relationship is cut off,rather than the necessary condition for cutting off the causal relationship,and it is not necessary condition of the establishment of withdrawing from the complicity.The third chapter mainly solves the problem of the determination of the withdrawing from the complicity of the specific accomplice type,and proposes the specific requirements for withdrawing from the complicity for different types of accomplice.Starting from the inherent accomplice system of criminal law in our country,the author learns the role division classification method from the German-Japanese accomplice system.The author divides the accomplice types in our country into organizer,joint commit criminal,instigator and abettor,and proposes specific requirements for judging withdrawing from the complicity.
Keywords/Search Tags:Withdrawing from the complicity, causal relationship, value judgmen
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