Research On The Construction Of Criminal Responsibility Model For The Neutral Assistance

The neutral assistance theory is researched many years in the criminal law in german and japan.In recent years,this theory has been noticed along with the development of the stratum system of criminal theory in our country.In particular,the typical criminal cases has put more attention on this problem.Under the background of the high division of labor in modern society,the neutral assistance bearing the function of the organization and joint for production or daily life.How to build the reasonable criminal responsibility model of neutral assistance theory is an inescapable topic,and this problem also has the practical significance in present China.But owing to the daily nature、neutrality feature,the way to accurately to divide the range of punishment for the neutral assistance is not easy.And this problem become more tricky along with the emergence of new network crime.How to balance the requirement between the scope of freedom and legal benefit protection,this problem need to prudent thinking and answer.Because of the important of the neutral assistance theory,this paper tries to discuss this problem in transverse and vertical dimensions.The vertical dimension contains three levels,the connotation category of neutral assistance,the basis of the theory of accomplice,and the judgement path of criminal responsibility.After discussing the above questions,the transverse dimension contains two problems.We need to change the traditional perspective,divided the neutral assistance into crime of action and crime of omission.This classification is more beneficial to solve the problem of the criminal responsibility.Through the above longitudinal and horizontal discussion,this paper try to construct the reasonable criminal responsibility model for the neutral assistance theory.The first chapter emphasis on sort out the conception of the neutral assistance.On the dispute for the conception,there are two positions in academic circles.The homogeneity position try to divide the conception into ’the neutral assistance’and’excessive the neutral assistance ’two categories.The former represents the legitimate ground,and the latter stands for the punishable type.The heterogeneity position try to maintain the whole category and establish the punishable part and impunity part.This paper supports the heterogeneity position,because of its factual perspective.The dispute between the homogeneity position and the heterogeneity position is not the formal difference,it determines the distinct routes.These different routes also have many problems,performance in the incriminate dimension and out crime dimension.Confusions in the incriminate dimension expressed as the prominent infringement effect for assistance,the conjoint unlawfulness for joint crime,and the contact the meaning of common crime is weak.Confusions in the out crime dimension is the excessive punishment caused by the conventional identification path of the help offender.However,no matter the confusions in the incriminate dimension or out crime dimension,the cause all can restore to the conjoint unlawfulness principle for joint crime.So the reasonable solution for the confusions is retrospecting to the basic level of the theory of accomplice.In the second chapter,the focus of the research will return to the basic level of the theory of accomplice doctrine.Based on the basis of the complicity,we will make a logical track of causality.First of all,the theory divided by the position of the punishment of accomplice punishment is analyzed.The theory of responsible accomplice and the theory of illegal accomplice will take part in the punish-ability to solve the problem from ’personality criminal law’ or ’destruction of social integrity’.It deviate from the act of participation to violate the basic line of the law.The theory of causal complicity is more reasonable,because the basic position of returning to the violation of law and interests conforms to the principle of the criminal law.However,in the theoretical standpoint of the cause and effect,the theory of modified causation and theory of mixed causation is confused with the theoretical foundation and the explanation of the problem.By adding the logic of ’risk raising’ in the perspective of objective imputation,we add the ’promotion formula"’ to realize the determination of the narrow scope of the causal relationship of participation behavior.Thus,it avoids the expansion of the scope of punishment of neutral help behavior.Is needed to help the behavior of the causal relationship between physical causation,mental causation,physical types of mental causation,using improved promote consensus judgment.The third chapter mainly discuss the judgment path of neutral helping behavior criminal responsibility in academic circles.At present,it has become a consensus view to restrict the penalty neutral helping behavior.However,the differences from the perspective of investigation form the situation of viewpoint contention.There are subjective and objective positions in the basic level of the constituent elements which originate from the differences in the setting of the center of gravity.However,the abandonment of subjective elements is not appropriate for the stereotyping of the type of participation.The compromise position represented by Professor Roxin advocates that the subjective and objective aspects of the criminal liability determination model should be given equal weight.However,there is a logical misunderstanding that objective imputation is controlled by subjective factors.The construction of the inner theory of illegal stratum reflects from the substantive standard layer.On the basis of the theory of criminal responsibility between the component stratum and the illegal stratum,the author points out that the criminal responsibility decision path of the constitutive element stratum and the illegal stratum is based on the reference property of the neutral help behavior,and the formal investigation angle makes the connection with it.The path in the transition period of China is now facing the situation of universality.This paper proposes to return to the normative level of neutral help behavior as a form of dual separation from the form of inaction.Through the transformation from the formal perspective to the normative perspective,we can ensure the applicability of neutral help behavior criminal liability determination model and practical rationality.The fourth chapter mainly discuss how to construct the judgment mode of criminal responsibility as neutral helping behavior.Based on the compromise mode,taking into consideration both the neutral and the subjective help behaviors,the rationality of the objective orientation and the model of criminal responsibility as the form are modeled on the compromise model.Firstly,we need to make a reasonable explanation of the subjective infiltration of objective imputation theory at the core of judgment mode."Special Cognition" lead to the questioning of the objectivity of the process of raising risk in academia.It is clearly that objectively imputation of the risk judgments process still retains the objective nature.The special cognitive elements",only as a risk assessment of the material selection criteria on the risk of rising conclusions derived indirectly play a role.The introduction path of such subjective factors can get the fundamental support of the functionalist crime theory and the essence of illegality.After explaining the infiltration of subjective factors in risk judgment,the criminal liability determination mode,which is neutral helping behavior of form,can be constructed from two aspects:positive judgment and reverse re-examination.Positive judgments of the class based on the risk of determining the choice of data,the main body to determine the time to determine the core to determine the overall conclusion of the risk of rising or not.The reverse review hierarchy relies on the applicable standards of social equivalence theory and trust principles to construct a second test on the initial conclusion that the risk is rising so as to achieve a reasonable reduction of the penalty.This article construct the above-mentioned criminal responsibility judgment mode from the normative theory,at the same time retains the advantages of the study of the perspective of the properties of the industry.By choosing the types of neutral help behaviors in the field of transportation,the sale of goods and the performance of civil obligations as the sample of investigation,the model of criminal responsibility determination as a form is adaptive verified.The fifth chapter emphasis on constructing the reasonable criminal liability determination model for criminal omission.There are two standpoints for the problem that how to definite the character of omission crime of accomplice.One points try to use the ’inactive committed offence’ avoid the difficult problem that how to build the system of obligation.But the defect of this way is confusing the problem of accomplice and criminal omission.One-side criminal omission theory also is not unsuited way to solve this problem.This paper proposals constructing the reasonable criminal liability determination model in the view of criminal omission for the form of accomplice.In order to solve this problem,right way need to construct the system of obligation and appropriate participation form.The theory of control criminal dose not have a distinct theoretical foundations.The theory of social functional relationship has the defect of formal obligation.The causality theory misses the discussion for the source of obligation.This paper follow the way of functionalism to support the theory of obligation offense theory from Jakobs professor.This need to explain the the system of obligation and type of participation two problems.The former shall divide the source of obligation into organization domination and institutional domination.The later shall construct the way to match the different obligation system.Finally,the criminal liability determination model for criminal omission will be tested in two social fields,the transportation field and the housing leasing field.