On Joint Act In Joint Offence

Joint offence is a common criminal pattern in judicial practice and a complicated subject in criminal law. Scientific concept of joint offence can serve as the guideline for correctly handling joint offence cases in judicial practice. Thereby, this paper conducts a rough discussion on joint act in joint offence. There are five parts in this paper. The first chapter introduces common problems of joint offence, including history and evolution of joint offence in China and other countries, laws and regulations on joint offence in German and Japanese criminal law and those in criminal law of our country. So far, there has not been authentic proof for whether there were regulations about joint offence in criminal law in slave society in China. In Warring states period, regulations of joint offence were in laws. Regulations of joint offence in Jurisprudence in Tang Dynasty are thorough, reaching a perfect degree in federal criminal law. In history of western legal system, there is no regulation on joint offence before Roman society. Legislation of joint offence first appeared in Germany and it is German Criminal Code of 1871 that makes great contribution to development of joint offence system of continental legal system. In German and Japanese criminal code, the foundation to classify joint offence is the division of work in joint offence. Criminal law in our country prescribes: "joint offence refers to two people or more commit crime together intentionally."Subject of joint offence must be more than two people with criminal capacity for responsibility. Subjectively, two or more people must have intention to commit crime together. Objectively, two or more people conduct joint offence act. The second chapter introduces and classifies definition and modes of joint act in joint offence. This chapter probes into the definition of joint act of joint offence and points out that joint act in joint offence not only emphasizes whether doers conduct certain act, but more importantly it emphasizes togetherness of the act, which is key to determining whether subject commits joint offence and demonstrates in unity in objectivity and subjectivity of the act. Specifically, joint offence refers to the act that two or more people together conduct harmful acts that are related internally under the intention of committing joint offence together. In other words, act of every doer of joint offence is for the same harmful consequence or potential illegal state and thereby every doer connects and cooperates with each other, forming a unified group of criminal activities. Harmful act of every doer is the component of joint offence and it is the cause of certain harmful consequence or act state caused by joint offence. According to different subjective or objective demonstrations, joint offence act in judicial practice can be divided into four categories: act of committing infringement together with premeditation; act of committing infringement together out of an interim intention, without premeditation; act of committing infringement together by people who know or should know though not participate in premeditation; act that people participate in premeditation and follow to the locale and other doers cause serious consequence. The third chapter elaborates two special acts that do not belong to joint offence, that is, single-way joint offence act and act beyond limits. Single-way joint offence is introduced from foreign criminal law theories. It refers to the situation that two or more doers commit crimes to the same target together, while only one doer has intention to commit crimes together and the other not. Situation of single-way joint offence exists objectively, which is agreed by scholars either with positive theories or negative theories in our country or continental legal system scholars and American and British legal system scholars in other countries. Joint offence requires that all accomplices know some people are commit the same crime with him; whereas single-way accomplices cannot communicate with other criminals out of single intention and therefore this crime cannot be controlled under the same intention to commit crime and thereby this act cannot form a unity with acts of other criminals. According to definition of joint offence in criminal law of our country, "joint intention"is the subjective condition for joint offence and "joint act"is the objective condition for joint offence. Subjectively, single-way joint offence does not conform to requirements of "joint intention"and objectively, it contradicts to requirements of "joint act". Act beyond limits refers to that the perpetrator carries out act beyond intention to commit crime. Under this condition, person with act beyond limits shall assume criminal liability for his crime. There are no explicitprovisions about act beyond limits in criminal law in our country; however, according to criminal law theories in our country, doer assumes liability only when he is subjectively responsible for the same harmful consequence. Act beyond limits exceeds the scope of joint intention, so the doer shall singly assume criminal liability for act beyond limits while other accomplices establish joint offence for act beyond limits. Act beyond limits does not belong to joint act in joint offence. The fourth chapter analyzes and elucidates two situations that shall be paid special attention when determining joint offence act. First, to determine people who participate in complicity but not conduct infringement act. In judicial practice, it is often to face the situation that whether participating in complicity but not offence forms joint offence. The author considers, generally, joint offence cannot be established with only joint offence but not joint offence act. However, this should depend on degree of participation in complicity. Accomplice shall be determined if he not only participates in complicity but also carries out material preparatory act of providing conditions for crimes, preparing tools and so on. Otherwise, accomplice shall not be determined when he only participates in complicity and he shall not be treated as accomplice. The author deems that any joint offence with complicity but not practice shall not be dealt with as crime. It is necessary to strictly define chief leader and active participators for necessary joint offence like joint offence with assembled crowd. For people who only participate in general complicity but not practice or follow to locale without active participation in necessary joint offence, they shall not investigated for criminal liability. However, chief leaders shall be investigated for criminal liability. Second, to determine insider that arrive at the locale with carrying out infringement act. This act refers to that the doer knows the fact of joint offence beforehand and follows to the locale thereafter, but does not carry out infringement act due to certain reason. Whether this act is convicted and punished in judicial practice generally depends on the consequence of infringement by other accomplices. The author calls this "depending on results". Some cases dare not investigate participators with criminal liability because it is difficult to measure consequences. The author thinks that the reason for this is lack of legal foundation. The fifth chapter proposes legislative assumption of perfecting joint...