Research On Criminalizing Accomplice As Principal

In criminal law,there are many provisions that punish accomplices separately.Some scholars interpret these provisions as independent crimes which criminalizing accomplices as principals,while other scholars believe that most regulations are only special sentencing rules of accomplices.Obviously different understandings will result different application effects of provisions.Therefore,it is worthwhile to develop a research on whether regulations are criminalizing accomplices as principals and what the differences between new crimes if they are and accomplices,etc.The first chapter mainly discusses the meaning of criminalizing accomplice as principal.Through analyzing regulations of accomplices in criminal legislation history,it is concluded that most separate regulations are independent from joint crimes and cannot be interpreted as sentencing rules.Therefore,under the differentiated criminal participation system,criminalizing accomplice as principal is an effective proposition.However,only comprehending the proposition as fictionalizing accomplices as principal offenders is not sufficient.Because quite a few crimes still require perpetrators’ behaviors,which are significantly different from the typical imputation process.In this sense,if the previous opinion can be regarded as criminalizing accomplice as principal typically which does not require subordination at all,it is still necessary to distinguish another type of criminalizing accomplice as principal,which does not require fully fulfillment of subordination,but at least it still requires the existence of perpetrator’s behavior.This type can be referred as criminalizing accomplice as principal atypically.The second chapter focuses on explaining why accomplices should be criminalized as principals.On the basis of illegality,according to the mixed causes theory,the illegality structure of accomplices consists of two parts: the independent inherent illegality and the subordinate illegality.Criminalizing accomplice as principal typically no longer requires subordination of principal,it is entirely punished by the independent illegality of its own.Since this independent illegality only has indirect legal interest harm,it is essentially an abstract danger.Furthermore,in situations where the abstract danger of accomplices is also considered intolerable in the legal order,such as offense against state and terrorism crime,there is a need for criminalizing accomplice as principal typically.In addition,although the legality of suicide and self-injury must be recognized,participating in other people’s suicide and self-injury is still an external attack on life and health.Due to the importance of legal benefits,it is necessary to criminalize such accomplice as abstract potential offences.In the situation of criminalizing accomplice as principal atypically,for the "one-to-many" accomplices,even if the perpetrator cannot be convicted,the accumulated illegality of the accomplices still requires penalty.Since social interactions in a risky society begin to show the characteristics of anonymity,when it comes to the circumstance that principal behavior cannot be verified,the requirement of subordination should be appropriately reduced.When a principal cannot be convicted because of lacking anticipated possibility,in consideration of making up the loopholes,it is also necessary to make the accomplice accountable.According to the positive general prevention theory,since the legal interests in crimes that criminalizing accomplice as principal typically are usually in the priority protection position,it is necessary to establish a separate normative expectation possibility standard.As to criminalizing accomplices as principals atypically,the "one-to-many" accomplices causing harm frequently,and therefore there is a need for positive general prevention.As for the occasions where principal offenders cannot be punished due to the anonymity of social interaction or the lack of expected possibility,it is necessary to show the public that accomplices’ behaviors are still generally prohibited.Chapter Three specifically analyzes the crimes which criminalize organizing,aiding and abetting as principal in criminal code.When criminalizing accomplice typically as principal,it means no longer need to verify principal’s behavior,and accomplice can be convicted by its own.If an actor both conducts accomplice and furthermore,other related crimes,cumulative punishment should be considered.What’s more,when a crime criminalizing accomplice as principal typically,it can have its accomplice.On contrast,when criminalizing atypically,the crime still requires at least the existence of perpetrator’s behavior,regardless the perpetrator can be convicted or not.Only according to the circumstances of the perpetrator,these crimes can be judged whether has been accomplished.If an actor both conducts accomplice and the further related crimes,it should be treated in accordance with the principle of absorbing offense.When crimes which do not have its own accomplice,the indirect accomplice should be referred as perpetrator’s accomplice.If the indirect accomplice is consistent with the new crime,it should be convicted directly,but not punished as the accomplice of the new crime.Additionally,in our country,the establishment of indirect principals is relative board compare to other counties,abettors are convicted as indirect principals in some cases.In this part,the distinction between indirect principals and abettors is also discussed in order to correct such phenomenon.In current principal offender framework,the type of indirect principal offender still needs to be admitted.But it is necessary to distinguish the understanding of the normative meaning of the constituent elements and the understanding of illegality clearly.If a juvenile who does not reach the criminal responsibility age,he or she does not have the ability to recognize illegality.However,it does not mean that he or she cannot understand the normative meaning of the constituent elements.Therefore,when persuading a juvenile to conduct the actus reus of a specific crime,if the juvenile does understand the social significance of such behavior,the user should form an abettor rather than an indirect principal offender.The fourth chapter attempts to demonstrate how to criminalize accomplice as principal.At the legislative level,criminalizing accomplice as principal requires consideration of the harm to the legal benefits,the necessity of positive general prevention and the principle of modesty.As to the harm to the legal benefits,when criminalizing accomplice as principal typically,due to the accomplice behavior only has abstract potential damage,so it must be treated as a last resolution.When criminalizing accomplice as principal atypically,for "one-to-many" accomplices,we should measure whether the accumulated illegality has reached the criminal degree.Since basing on the anonymity of social communication to criminalizing accomplice as principal is a compromise to improve judicial efficiency,legislation should be made cautiously on this ground.In addition,if the crime of escape is decriminalized in the future,in order to make up of the loopholes in punishment,it is also necessary to criminalize the accomplice of escape as principal atypically.If the accomplice has not reached the level of criminal violation,it cannot be treated as an offense merely on the grounds of prevention.For accomplices with criminal illegality,if they are not common in social life,there is no need to create a new crime basing on the theory of positive general prevention.According to the principle of modesty,the constitutive elements of the crime should be as clear as possible to avoid the over expansion of punishment.In criminal justice practice,since the interpretation of the criminal law shall not beyond the maximum possible meaning of the terms,the court neither can interpret accomplice as a principal directly,nor can it treat an accomplice behavior as a principal when legislator does not to do so.In addition,since the criminal policy should be systematically integrated into the criminal theory system through the protection of legal interest,it is not allowed to punish the accomplices that the legislator originally did not punish according to the policy reasons beyond the criminal law.