The Theory Of Withdrawing From The Complicity

In Japan,the Theory of Withdrawing from the Complicity has been deeply developed in the criminal law field,and it has been substantially established in the trial of Japan's Supreme Court.This theory has also been studied in depth by domestic scholars for a long time,but there is still no consensus on the positioning of the criminal law system and the specific criteria for disengagement.In Chinese judicial practice,the opinions submitted by the defense on the disengagement are often confused with those on the Suspension of Complicity.The reasons are as follows: Firstly,that the transplantation of the theory needs to take into account the differences in the structure of the Chinese and Japanese criminal law systems.Secondly,that the doctrinal controversy still exists in the theory.Thirdly,that the diversity of specific types of accomplices and the complexity of the case aggravate the difficulty of applying the theory.To address these three issues and to provide a path for the application of the theory in Chinese judicial practice,this article conducts an in-depth discussion of the theory.The thesis is divided into four chapters.Chapter 1 is the origin and theoretical development of the Theory of Withdrawing from the Complicity,including the theoretical background and the comparative study under the criminal legislation of China and Japan.Firstly,through the introduction of cases,the necessity and dilemma of the theory of disengagement of accomplices in China's judicial practice are clarified.Secondly,the academic background and development of the theory in Japan are discussed.Based on the position of Restricted Subordination and the Principle of Individual Responsibility with the discussion on the basis of accomplice punishment,the Theory of Causal Accomplice as the commonly supported doctrine of accomplice punishment can open up a more powerful and concrete path for the theory.Again,the article compares the common basis and legislative differences between Chinese and Japanese criminal law in the application of the Theory of Withdrawing from the Complicity.The differences in the types of accomplices,the principles of punishment,and the stages of suspension are examined to inquire the applicability of the theory in China.Chapter 2 is a review of the system and doctrine of accomplice disengagement,including theoretical attributes and judgment criteria.On the one hand,it is easy to confuse the theoretical orientation of withdrawing from the complicity with suspension of accomplice,and the connection and difference between the two is exposed here.I believe that the designations "Affirmative" and "Negative" theories do not represent their substantive connotations.In addition,the latter is supported by the arguments of the progressiveness of the theory and the objectivity of the judgment,and the attribute of withdrawal is regarded as a form of joint criminality.On the other hand,the doctrinal debate on the criteria for judging the disengagement of accomplices is reviewed and analyzed.Among them,the Theory of Causality Obscuration can provide a much more specific,objective and operable judgment criteria.Chapter 3 is the theoretical basis and judgment standard of the theory.First of all,the basis of the doctrine is discussed,especially the purpose and basis of the normative nature.For some cases where the causal link is not satisfied,"Why" should be evaluated normatively as accomplice disassociation.In the theory of internal difficulties to reach a unified logic,I believe that the "external force" can be borrowed from the provisions of criminal policy to make it logically self-consistent.Secondly,this article tries to construct a theoretical model of causality relationship shading with reference to the concept of physics,to visualize the judgment process of abstract causality relationship shading as much as possible,so as to explain the "How" of the normative evaluation.Again,the subjective criterion should be adjusted from the theory that the meaning of withdrawing is "recognized" by other accomplices to "awareness",so that the right of withdrawing from the crime is returned from the criminal group to the perpetrator himself.Then,in addition to "stopping" the criminal act,there is also a "negative of merit" to the criminal process.Finally,the effects of the preceding and following acts are evaluated in a normative manner.If the effect of the actor's negative work is greater than the effect of his previous positive work on the criminal process,the actor can be considered to be disengaged.Chapter 4 deals with the application of the judgment conditions to each specific type of accomplice.The division of labor of the accomplice in the group is used as the standard for classifying the types of accomplices,and the classification of the perpetrator,aider,abettor,and organizer is used to make the determination of accomplice separation from the relevant judicial precedents in practice according to the objective and subjective judgment criteria in Chapter 3.