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Identification And Dualistic Judgment Standard Of Withdraw From The Complicity

Posted on:2021-01-11Degree:MasterType:Thesis
Country:ChinaCandidate:Z X HuFull Text:PDF
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In terms of the responsibility of accomplice,the traditional criminal law theory and judicial practice of our country adopt the principle of "partial implementation,full responsibility" because of the theory of Japanese criminal law."Part of the accomplice,full responsibility" principle although saw the joint crime from the crime difference alone,but the accomplice punishment principle in some cases may also be difficult to apply,especially in an accomplice give up halfway crime and actively prevent the rest of the accomplice of crimes but failed,the accomplice still should assume responsibility for crime accomplishment.It is not only disadvantageous to encourage the doer to quit joint crime,but also obviously violates people's legal feelings.Therefore,in order to make up for the deficiency of accomplice suspension,the concept of accomplice detachment was put forward.The theory of withdraw from the complicity refers to the problem of whether the behavior and result of other accomplices can be blamed for the disengagement.Although the theory of accomplice divorce is still foreign to the criminal law field in China,recently,not only in the theoretical field,many scholars in China have begun to introduce the theory of accomplice divorce and critically think about it.In judicial practice,there are three main situations in the application of the theory of accomplice divorce: 1.2.Affirm the accomplice's departure,but only as a discretionary consideration of the circumstances of punishment;3.The accomplice shall be separated from the accomplice and shall not bear criminal responsibility for the subsequent behaviors and results.The differences in judicial practice come from the lack of theoretical grasp,mainly reflected in: 1.2.The specific standard of the accomplice's separation is not clear enough.In terms of the relationship between accomplice disengagement and accomplice discontinuation,the development of the theory of accomplice disengagement in the early period focused on the difference between the two.In the beginning,the accomplice's departure was merely a case of the accomplice's termination,which treated the two equally.Although this approach has its internal reasons,but will obviously bring a lot of shortcomings.Therefore,Japanese scholars represented by tatsuo kagawa and professor hitoshi otsuka began to study the differences between the two,and finally separated the theory of accomplice detachment from the system of accomplice suspension and became an independent concept.The difference between the separation of accomplice and the suspension of accomplice mainly lies in the difference of the establishment requirements and the legal effect.On the specific standard of accomplice disengagement,there have been many theoretical arguments for a long time.The cause-and-effect theory temporarily occupies the position of the general theory.The general theory of cause-and-effect relationship is developed with the theory of cause-and-effect accomplice occupying a dominant position in the theory of punishment basis of accomplice.Detachment of elements is essentially make person be exempted from punishment on the rest of the accomplice subsequent behaviour of the elements,taking the logic,the causal theory of accomplice as accomplices punishment according to the word,as long as the leavers interrupt his previous behavior and following the practice of the rest of the accomplice behavior and the causal relationship between the method of profit violation result,also,of course,not the result of the subsequent behavior and guilt.The idea of cause-and-effect concealment is thus constructed.However,while the cause-and-effect theory has become a general theory because of its theoretical consistency with the theory of causal accomplice,it has also been questioned because of the shortcomings of the traditional theory of causal accomplice.Since the theory of causal accomplice emphasizes the causal relationship of fact in the causality of accomplice,the theory of cause-and-effect relationship concealment also requires that the causal relationship of fact be obstructed.However,it is impossible to completely deny the causal relationship of fact.In order to criticize this point,the normative cause-and-effect theory and even the range of collusion have been put forward,but they also have many shortcomings.Since the punishment basis of co-principal offender is different from that of accomplice in narrow sense,based on the criticism of the theory of normative causation and collusion range,the separation criteria of co-principal offender and accomplice in narrow sense should be constructed respectively.For the narrow sense of accomplice,it should be required tochange from the fact of causation to the imputable one,which is divided into the danger which is not allowed by the elimination law and the danger which is not allowed by the law.For the separation of the common principal offender,it is required to negate the principal offender's nature through the elimination of the collusion relationship,and further negate the possibility of the establishment of the accomplice through the denial of the imputation.
Keywords/Search Tags:Withdrawal form Accomplice Offense Relationship, Suspension of Accomplice, Causal Accomplice Theory, Objective Imputation Theory
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