On The Scope Of Punishment For Correspondence Offence

The necessary complicity is derived from the doctrine of necessary complicity in German and Japanese criminal law.The provisions on the punishment of offenders are not uncommon in the sub-provisions of China’s criminal law,and can be divided into four types according to the different crimes and statutory punishments: the same crime and the same punishment,the same crime and different punishment,only one party is punished,and the implicit punishment is only one party.The theory of complicity in offenders and China is not completely compatible,and the criminal law does not clearly stipulate the scope of punishment for offenders.Specifically,the "same crime and punishment" is confusing in the application of the provisions on the principal and accessory offenders in the guilt,the "different crimes and different punishments" have differences in punishment when conspiring between the offenders,the problem of identifying the accomplices of the third party as the intermediate contact,the scope of punishment for the necessary participation in the offender in the narrow sense of the "only punishment" of the "only one party",how to determine the accomplice punishment when the third party participates in the "non-punishment" party,and whether the "implied punishment of only one party" can punish the third party who has added merit to the offender for several crimes and punish.Based on this,this paper intends to carry out a more systematic study on the "scope of punishment for offenders".In addition to the introduction,this article is divided into five chapters,the full text of which is about 75,000 words.The main content is divided into five parts:Part Ⅰ: Introduction and Analysis of the Basic Principles and Scope of Punishment for Guilty Offenders: First,according to the current judicial situation,the reason for the disagreement over punishment for crimes lies in the differences in the meaning and extension of the concept of joint crime and the theory of necessary complicity in China’s criminal law system,resulting in differences in determining the scope of punishment for necessary accomplices.Secondly,it introduces the theoretical basis for the punishment of the perpetrator,including the basic theory of necessary accomplice,the former explaining the scope of the necessary accomplice and the substantive basis for excluding the punishment of the general complicity of the offender,and the latter providing a theoretical basis for whether an accomplice in the narrow sense can be established among the offenders.Finally,the application of the theory of necessary accomplices to the punishment of offenders is analyzed,and on the one hand,the scope of establishment of "necessary accomplices" is determined according to the analysis of the theory of crime composition;On the other hand,this paper examines the system of distinguishing complicity in German and Japanese criminal law,determines the meaning of "accomplice" in the evaluation of punishment,and clarifies that the scope of exclusion of general complicity punishment from the theory of necessary complicity is limited to accomplices in the narrow sense,and does not include co-perpetrators.In the case of "only punishing one party" against the offender,there are no special provisions in the criminal law sub-provisions because the counterparticipant participation of the "non-punishable" party lacks the substantive conditions for the application of the theory of necessary complicity.When a third person participates in a confrontation,the third person is not a necessary accomplice,and therefore the doctrine of necessary accomplice cannot be applied.Part Ⅱ: Analysis of the punishment of "same crime and same punishment" for the offender: First,the constituent elements of necessary accomplices are explained from the concept of accomplices in a broad sense,and it is determined that "same crime and punishment" is a necessary accomplice.Secondly,according to the "objective behavior theory" and "important role theory",the specific connotation of the provisions of the criminal law to exclude the general provisions on complicity is explained.Finally,combined with the provisions on the constituent elements of the crime in the sub-provisions of the Criminal Law,it is judged whether the content of the crime can be regarded as a special provision for accomplices in the general provisions.Among them,the "same crime and punishment" for both types of acts will be separately stipulated for the principal offender,and the punishment prescribed by the principal and accessory will no longer apply.The types of conduct committed by both parties are not separately stipulated,and the criminal acts stipulated as a whole,such as the crime of collusion in bidding,do not have the special nature of excluding the punishment of accomplice in the General Provisions,and are still punished in accordance with the provisions of the General Provisions for the principal and accessory offenders.In addition,when the "same crime and same punishment" type is used against multiple third-party participants in the offender,since only the same crime is committed and the punishment basis for accomplices is the same,considering the balanced sentencing and judicial efficiency,it is more appropriate to apply the conviction and punishment of all third-party participants according to the size of the role of the principal and accessory provisions.Part Ⅲ: Analysis of the Punishment of Perpetrators by "Different Crimes and Different Punishments" : First,the situation of conspiracy between the perpetrators of "different crimes and different crimes" is analyzed,and if a joint principal offender cannot be established,each of them shall be punished in accordance with the crimes and statutory penalties stipulated in the sub-rules.If one party can also establish a joint perpetrator of the conspiracy,the punishment of the joint principal cannot be excluded solely on the basis of the theory of necessary accomplice.Second,it is clear that the basis for the act of conspiracy to establish a joint crime,"conspiracy" is not only a subjective element,but also an objective element.When there is a conspiracy between the "different crimes and different punishments",it is possible to establish a joint culprit.Third,according to the division of complicity in the theory of complicity,the division of conspiracy into co-perpetrators according to substantive objective theory can be divided into dominance and sharing types.Finally,combined with the types of conspiracy and co-perpetrators,in the "different crimes and different sentences" counter-offenders,the manifestations of conspiracy playing an important role in the joint crime are sorted out,including criminal planning type,organizational leadership type,process determination type,and criminal crime sharing type,and the scope of joint principal offender who establishes complicity is determined.In addition,when a third party participates as an intermediary contact person in the "different crimes and different punishments" against the offender,the punishment plan shall be determined separately according to the intermediary and the instruction intermediary,and if it is an act of instructing the intermediary,and the crime is completed only in accordance with the instructions of the lesser party,based on the consideration of the balance of the crime,it can only be convicted and punished as an accomplice of the minor offender in the offender.Part Ⅳ: Analysis of the Scope of Punishment for "Only Punishing the Party" to the Offender: First,based on the existing theory,analyze the scope of punishment for the "not punishing" party participating in the act.As far as the legislator’s meaning and derivation theory are concerned,his understanding of the "stereotype" of behavior puts forward four types of judgment standards,and the party that exceeds the stereotype of "non-punishment" needs to be punished as an accomplice in the narrow sense.However,the defect lies in the detachment from the entity of violation and responsibility,and the conclusion that it can be punished is directly drawn;In addition,the intention of the legislator is not clear,which can easily lead to unclear punishment boundaries.The substance theory seeks substantive reasons from the two aspects of violation of law and responsibility,and explores whether to punish necessary participation behavior,but the defect lies in the lack of other substantive basis for determining the reasonable scope of punishment when the necessary participation behavior is both illegal and liable.Second,where the necessary participation is both illegal and responsible,it is necessary to substantively judge the degree of violation in accordance with the "principle of proportionality" and the "principle of proportionality of criminal responsibility and punishment",and then limit the scope of punishment within a reasonable range.If it cannot be judged according to the above-mentioned substantive standards,it must be judged according to "stereotype",but it must be restricted,that is,the conduct exceeding "stereotype" cannot be directly used as a punishable standard,and when the illegality of the act exceeds that of a third-party accomplice,it cannot be denied punishment on the grounds that the legislator intended to say so.Finally,the party that "does not punish" needs to have a substantial basis for punishing accomplices in a narrow sense,so it should "determine the source of illegality according to different types of legal and beneficial infringement" and "determine the types of necessary participation acts with illegality",indicating the scope of substantive illegality of the participation of the "non-punished" party.On this basis,the degree of illegality is examined to limit the scope of punishment,and the scope of punishment is determined in combination with responsibility,so "whether the degree of illegality reaches the degree of punishment" and "the scope of punishment is determined in combination with the elements of responsibility" in a total of four steps to determine the scope of punishment for the participation of the "non-punished" party according to the narrow sense of the complicity.In addition,when a third party participates in the "only punishing one party" against the offender,first of all,four types of participation behaviors with blurred boundaries are sorted out: intermediary facilitation,information sharing,entrusted purchasing,and entrusted collection.Secondly,according to whether the nature of the formal participation has been broken and whether the risk of infringement of legal interests has increased in substance,a specific analysis is carried out to determine the scope of punishment.Finally,when a third party cooperates to punish a party by instigating,it cannot all be regarded as an instigator,and if the instigation does not cause an essential act,but has a causal effect on the result of infringement of legal interests,it should be punished as an aider.Part Ⅴ: Analysis of the Punishment of "Implicit Only One Party" to the Offender: First,a specific analysis was made of the offender of the punishment part,and the act of obtaining state secrets other than "stealing,espionage,and buying" should be punished as an accomplice to the crime of leaking state secrets because its act violated the interests of public law,was illegal,and it was determined that the punishment of accomplices to the crime of leaking state secrets would not lead to incompatible punishment.For the act of obtaining loans by means other than deception,it is appropriate to determine the intention of the legislator in combination with the principle of proportionality of crime and punishment,and it is appropriate to punish only the participation in obtaining loans in a more serious way than deception.Secondly,for the opposing offender whose accompanying state or result of the "non-punishment" party’s act constitutes a crime,if there is a third party and both parties,because the protection law and interests are inclusive,the punishment can be rationalized according to the felony and the behavior can be inclusively evaluated,there is no need to punish several crimes together,and the scope of punishment is determined according to the basis of the punishment of accomplices.