Research On The Perpetration Of Helping Behavior

In the specific provisions of criminal law,there is a special type of crime.The main feature is that legislators directly punish the helping behavior as the principal offender,rather than punish it with the help of the principle of accomplice in combination with the relevant principal crimes.This thesis calls it the perpetration of helping behavior,and some scholars call it the perpetration of accessory,the fictitious principal offender or the helping principal offender.The perpetration of helping behavior has the characteristics of being free from proving the perpetrator’s behavior,criminal intention connection and perpetrator’s result.It can greatly improve the regulation scope and ability of criminal law norms,and has significant advantages in combating crime and protecting legal interests.However,there are also legitimate questions about the risk of damaging the accomplice system and excessively squeezing citizens’ personal freedom space.In any case,the current criminal law has expressly stipulated many crimes of perpetration of helping behavior.On the basis of facing the reality,we need to actively explore the legitimacy basis of legislation,clarify the basic legislative position,analyze the basic legislative principles,and put forward feasible legislative paths to improve the legislation,so as to stick to your strengths,and play a good role in the function of the perpetration system of helping behavior.In addition to the introduction and conclusion,the text is divided into five parts,about190000 words.The main contents are as follows:The first chapter mainly discusses the basic concept,theoretical premise and normative basis of the perpetration of helping behavior.It mainly focuses on the following problems:firstly,based on the analysis of the concepts of fictitious principal offender and perpetration of accessory,this thesis puts forward the definition of the perpetration of helping behavior,that is to say,a legislative phenomenon that the criminal law directly stipulates a certain helping behavior as principal offender and sets up an independent legal punishment.It is proposed that the crime of the perpetration of helping behavior has the characteristics of legality helpfulness and independence.Combined with the different characteristics of constituent elements,it is proposed that there are three kinds of typical methods: typical helping behavior perpetration,conditional helping behavior perpetration and criminalization of helping behavior.Secondly,after a comprehensive analysis and comparison of the main advantages and disadvantages of the single system and differentiating system of joint crime,we choose the differentiating system of joint crime,and propose to take the restrictive subordination in the differentiating system of joint crime as the basic theoretical premise and theoretical support of the perpetration of helping behavior.Thirdly,we demonstrate that the provisions on accomplice in China’s criminal law comply with the principal offender participation system of the distinction system.On this basis,through analysis and interpretation,realizing the discourse transformation and connection between the specific provisions on accomplice in the general provisions of criminal law and the principal offender participation system of the distinction system,so as to lay a solid foundation for further research.Combined with the specific provisions of the criminal law on the crime of the perpetration of helping behavior,this thesis preliminarily demonstrates the normative basis and institutional support of the legislation of the perpetration of helping behavior.The second chapter mainly discusses the basic position that the perpetration of helping behavior should adhere to.The position determines the direction and the effectiveness of the research.It is the basic problem that needs to be solved in the research of the perpetration of helping behavior.It mainly focuses on the following themes: firstly,it deeply evaluates and analyzes the comprehensive negative position of the perpetration of helping behavior,based on the objective provisions of criminal legislation and the practical necessity of criminal law regulation,and points out the shortcomings of the comprehensive negative position from the positive side and the serious defects of the comprehensive negative position from the negative side based on the shortcomings of possible alternative measures.Secondly,it discusses the possibility of shaking the theoretical system of accomplice,undermining the internal unity of criminal law and causing excessive expansion of crime,and puts forward the institutional risks existing in the perpetration of helping behavior.If it is fully expanded in criminal law,it will turn many risks into reality and make criminal law chaotic and disorderly expansion.There are also serious defects in the comprehensive affirmative position of the perpetration of helping behavior.Thirdly,the value shift from the negative view of criminal law to the positive view of criminal law,the practical needs of the development from decriminalization to criminalization,and the proper choice from extreme position to limited position,actively demonstrate that the limited position of the perpetration of helping behavior is the practical requirement of giving consideration to the protection of legal interests and the protection of human rights,and the practical demand of giving full play to the advantages of criminal law and the prevention and control of risks.It is also the basis and necessary choice for theoretical research.The third chapter mainly discusses the necessity and feasibility of legislation to the perpetration of helping behavior from the aspects of legal interest protection,theoretical dynamics,practical needs and institutional advantages,and fully demonstrates the legitimacy of legislation.The main contents are as follows: firstly,the analysis puts forward that the fundamental reason for the perpetration of helping behavior is the infringement of legal interests,that is,helping behavior has serious infringement and threat of legal interests,independent infringement of legal interests,and has the characteristics of typology.Secondly,based on the new development and changes in the criminal law theory,that is,the spiritual trend of the content of legal interests,the substantive trend of the concept of principal offender and the functional orientation of criminal responsibility,it is analyzed that the criminal law theory supports the positive expansion trend of criminal law,and the perpetration of helping behavior is also in line with this theoretical trend and is deeply influenced by it.Thirdly,based on meeting the realistic requirements of keeping pace with the times,starting from actively responding to the new requirements and challenges put forward by the risk society,this thesis demonstrates that the perpetration of helping behavior actively meets the practical requirements of criminal policy from freedom protection to security,conforms to the practical demands of positive general prevention,and proves that the perpetration of helping behavior is an important means to actively respond to the reality and meet the practical needs.Fourthly,from the perspective of utilitarianism,from the aspects of the perpetration of helping behavior to simplify the proof of facts,reduce the burden of proof of the prosecution,resolve the difficult problems of conviction,eliminate the obstacles of judicial evaluation,deal with the problem of sentencing,ensure the balance of crime and punishment of individual cases,meet the possibility of individual criminal law prediction,and effectively implement the criminal law of crime,this thesis demonstrates that the perpetration of helping behavior has obvious institutional advantages.The fourth chapter mainly discusses the main characteristics,basic experience,existing problems and cause analysis of the legislation of the perpetration of helping behavior at home and abroad,so as to provide reference materials and lay a solid foundation for the improvement of legislation.The main contents are as follows: firstly,take the comparative research method to carry out extraterritorial investigation,take whether the differentiated principal offender participation system is implemented in the criminal code as the standard,select the German and Japanese criminal codes from many countries as the research samples,comprehensively sort out the legislative status and main characteristics of the German and Japanese criminal codes on the perpetration of helping behavior,and use the comparative analysis method.It puts forward some references for our country,such as prudent legislative attitude,paying attention to targeted reasons for penalty reduction and exemption,mainly focusing on the field of felony,etc.Secondly,comprehensively sort out the legislative status of the perpetration of helping behavior in China’s criminal law,the main legislative characteristics and main legislative enlightenment,that is,pay attention to the tendency of legal interest protection,participate in social governance and adapt to social development.Thirdly,comment on the basic achievements of China’s legislation on the perpetration of helping behavior,that is,to tighten the criminal law network,facilitate judicial practice,meet social development and effectively regulate crime.Deeply analyze the shortcomings,that is,the classified legislation is not obvious,the punishment scope is not clear,the legislative standards are not unified,the punishment boundary is not clear,and the internal coordination of the system is not coordinated,and analyze the main reasons,that is,there are deviations in concept guidance,affected by influential events,deficiencies in theoretical guidance and shortcomings in legislative practice,so as to provide guidance for the exploration of legislative perfection.The fifth chapter mainly discusses the legislative improvement of the perpetration of helping behavior,which is also an active exploration of theoretical research based on the practice of service legislation,in order to provide useful reference and guidance for legislation.The main contents are as follows: firstly,it puts forward the basic guiding principles that should be adhered to in the legislation of the perpetration of helping behavior.In the legislative concept,it should adhere to the protection of legal interests as the guide,in the improvement of counts,it should adhere to the clear principle as the standard,in the allocation of punishment,it should implement the balance of crime and punishment as the guide,and put forward overall principled requirements for the legislation of the perpetration of helping behavior.Secondly,take the dichotomy of positive standards and negative standards as the analysis approach,and actively explore the basic legislation standards for the perpetration of helping behavior.The positive standards focus on the protection of legal interests,and focus on the relationship of infringement of legal interests,the degree of infringement,the nature and important role of illegal acts.The negative standards focus on the principle of proportionality,it is proposed that the legislation of the perpetration of helping behavior should meet the conditions of appropriateness,necessity and proportionality.Through positive standards and negative standards,we can limit the scope of legislation layer by layer,in order to effectively protect legal interests,but not too restrict citizens’ personal freedom,and realize the dynamic balance between them.Thirdly,taking the suggestion of helping the production and sale of toxic and harmful food as an example,the use of positive standards and negative standards for inspection and examples not only proves the necessity and legitimacy of helping the production and sale of toxic and harmful food as a principal offender,but also further demonstrates the reference and practicality of the standards proposed in this thesis.In a word,the research on the perpetration of helping behavior has distinct characteristics of the times and practical value.From the perspective of legislative perfection research,guided by adapting to the development of the times,and focusing on the topics of definition,basic position,legitimate basis,legislative standards,etc.,this thesis puts forward the legislative principles of the perpetration of helping behavior,explores the legislative standards,demonstrates with examples,and puts forward specific legislative suggestions,which has certain reference significance for the theoretical research and legislative practice of the perpetration of helping behavior.