The Study On The Foundation Of Accomplices Punishment

The purpose of the foundation of accomplices punishment is to discuss why the accomplice should be treated as a crime while this accomplice not correspond with Tatbestand. The foundation of accomplices punishment is a fundamental problem in the theory of accomplices. In the Germany and Japanese criminal law, the leading position of the foundation of accomplices punishment has been established. The foundation of accomplices punishment is the base of the theory of accomplices, and it is also used to solve the specific matters. But in china, the study on the foundation of accomplices punishment just starts up and it is not enough. The depth study on the foundation of accomplices punishment not only could help to perfect the theory system of the accomplices but also could help to solve the specific problems in the reality. So the study on the foundation of accomplices punishment is good for the criminal law theory and judicial practice.Chapter one talks about the possibility and necessity of the foundation of accomplices punishment in the background of Chinese criminal law theory. The author will consider this problem from the premise and the function of the foundation of accomplices punishment. The premise of the foundation of accomplices punishment is to admit the restriktiver Taterbegriff. Before talking about the foundation of accomplices punishment, we should make sure that if there is a theory surroundings in Chinese criminal law. The restriktiver Taterbegriff which provides the premise for the foundation of accomplices punishment has been broadly accepted in Chinese criminal law. At the same time, as the base of the accomplices theory, the foundation of accomplices punishment has the function of legislation and legal interpretation.Chapter two introduces all the theories about the foundation of accomplices punishment. This paper divide the theories into two standpoints:the Strafbarkeit subordinationism of the accomplices and the Strafbarkeit Unabhangigkeit of the accomplices. The Strafbarkeit Unabhangigkeit of the accomplices could further divide into:schuldteilnahmetheorie, unrechtsteilnahmetheorie and verursachungstheorie. The verursachungstheorie could then divide into reine verursachungstheorie, modifizierte verursachungstheorie and gemischte verursachungstheorie.Chapter three analyzes the research method of the foundation of accomplices punishment and raises that we should study all the theories from the liability and the rechtswidrigkeit. The author suggests that we should consider the foundation of accomplices punishment in the view of liability and the rechtswidrigkeit. The consideration of the liability means that we should research the relationship between the principal of personal liability and the foundation of accomplices punishment. The view about the foundation of accomplices punishment must not be conflicting with the principal of personal liability. The Strafbarkeit subordinationism of the accomplices is a unreasonable standpoint because it violates the principal of personal liability. From the standpoint of rechtswidrigkeit we should talk about the foundation of accomplices punishment in the view of rechtsgutverletzung, so reine verursachungstheorie is unreasonable. The rechtswidrigkeit of the accomplices is educed by the rechtswidrigkeit act of the principal offender. The accomplices have the rechtswidrigkeit because it infringes the rechtsgut indirectly. After the study on the liability and the rechtswidrigkeit, the author choose the gemischte verursachungstheorie.Chapter four talks about how to apply the foundation of accomplices punishment to the theory and practice. The foundation of accomplices punishment is not a pure theory discuss. The purpose of researching the foundation of accomplices punishment is to apply it to the theory and practice. As theory base of the accomplices, the foundation of accomplices punishment could direct lots of the theory problems and it also plays an important role in the establishment and improvement of the accomplices theory system in the criminal law. In addition, the foundation of accomplices punishment could be used for solving the difficult criminal problems. In terms of the theory, the gemischte verursachungstheorie influences the essence and the Tatbestand of the accomplices. In practice, the gemischte verursachungstheorie could be used for solving the anftistung zum versuch and indispensable joint crime problems.