Study On Identity To The Nature Of Joint Crime

Identity crime and joint crime are the two comparatively crucial context in criminal law. Every issue has a lot of disputes and is the hot spot and difficulty under consideration in the theory of criminal law. Particularly the problem in identity crime to the joint crime exits between determination and sentencing. Consequently, whether we can account for this condition equitily and rationly effect the actualization of legal interest and safeguard of Human Rights. In order to settle this problem, this article divides into three parts:In the first part, research on the concept and characteristics of identity and identity crime.General meanings of identity refers to human's birth, status and qualification. According to the rule of criminal law, identity is not only the centralized reflection of social relationship, but also has special criminal meanings in itself. In some degree, identity determines the nature and classification of crime. At the same time, it has the special effect to the assumption of criminal responsibility. I agree with the general theory, deeming the identity in the criminal law is the special qualification, position and state that effect whether they should endure criminal responsibility and penal degree. About the characteristics of identity: there are many points of view. To me, it sums up three points: affair characteristic, law characteristic and essential characteristic.Indentity is a kind of crime to be laid out to limit the subject of crime and also an important problem in crime. Any country, when study the essential subject of crime, it can not be avoided. After comparing the features of Continental Sysytem, Anglo American System and Taiwan.District, it is believed to be a criminal pattern, neither a class of criminal actor nor a criminal behavor. First, what we call identity crime is a crime that the subject who has a spectial position and utilizes it to endanger society and takes the responsibility or effects the penal degree. Second, to distinguish correctly the special subject crime and identity are two different concepts. The former is not the latter one. The basic feature is the law-basic, deduced and relative. There are classifications of law and theory. In the Continental System, most academician divide the identity crime into offense by standard status and offense by non-standard status, only the extension definition a little different. In our country, it is divided into offense by standard status and offense by non-standard status, by hand capacity and by non-hand capacity, formulary capacity and non-formulary capacity, passive capacity and positive capacity, natural capacity and legal capacity. According to the classification of law, it is divided into special duty crime, professional crime, special person crime and special participator crime.The second part, the qualitative of identity effects the joint crime in our country.There are no general principles presripting in General Provisions of Criminal Law, but only one or two prescripts in the Specific Provisions of Criminal Law. Hence, this article will discuss it from three aspects. First, research on non-identity instigates and assists the identity to enforce the joint crime. From the example of German, Japan and Taiwan to the dispute of our country, the author is inclined to the current general theory, considering it should be determined by the behavor's nature. Thus it can fit our current criminal theory and give the standard of our sentence practice. But how to resolve the problem of the public servants instigating and assisting the non-identity to enforce the identity crime? The author think we can add some more inputation, that is, aggregated consequential offense, which is equal to his duty. Second, research on the nature of identity instigates and assists the non-identity to enforce the identity joint crime. We should discuss it from the following two aspects: first, the non-identity is equal to the identity's tool, then the former is the non-direct crimer of the offense by standard status. The latter is his assistant. Second, if the opposit, the former should be penaled and the latter should not be believed to crime. Third, among the identities I think it depends on if they use their power and the essectial effects on the joint crime. Therefore, we must consider the special power and identity. If they use not only their own identities but also use the others', different identities only enforce one behavor, offend two imputations. According to the composition of conjure concurrent crime to penal the crimers.The third part, the legislation integrity on qualitative of identity to joint crime.But there are no special prescripts in General Provisions of Criminal Law, only a few prescripts in the subprovision and judicial interpretation, above all, specially to some special joint crime and not from the general rule to resolve this problem. So in our practice, we often resolve it according to the General Provision and Judicial Interpretation. These effect the judicial practice because of the inperfect rules and the non-uniform conceits.First, legislations use for reference. Seperately from our acient and abroad legislations. We can give the advice on this problem. Second, forecast on this problem. We need a legislation images owing to there is no rules currently and we can not avoid to this problem. The concept can be set in the General Provisions of Criminal Law or we can referent from the other countries, such as, German, Japan and our Taiwan. We can set the corresponding parts to integrity this deficiency so that the judicial practice can deal with them according to the law, but not the modus operandi, in favor of the achievement of the basic criminal law principle, legal crime and punishment.