Study On The Basic Issues About The Criminal Responsibility Of Accessorial Crime

The concept of accessorial crime, namely in the joint crime, in view of the intention of assistance participates the offense with act of non-perpetrating. Although the accessorial crime cannot solely constitute a crime, it is still holding criminal responsibility. But why is it? This is an issue that we have to study and solve. This article refers to the civil law system and on the basis of the Chinese criminal law, gives a comprehensive and systematic expression to the criminal responsibility of accessorial crime from three basic issues: basis, requirements and scope.The whole article is divided into three parts: preface, main text and conclusion. It contains about 33,000 Chinese words.The preface mainly explains the theory status and research status of the criminal responsibility of the accessorial crime. In addition, the author sets out to be the body of the study and solve the major issues.The main text concludes four sections:In the first part, the author talks about the basic theory and the principle about the criminal responsibility of the accessorial crime. In the part of the basic theory, author focus on two important issues: the nature of accomplices and the scope of joint crime. With regard to the former, there are some disputes between the view points that insists on abetter's character is unattached to the actors,and the abetter's character is appurtenant to the actors in the criminal law theory of German and Japan. Because there are some disadvantages in the theory of independence on complicity. The author favors the theory of subordination on complicity, and regards it as the basic theory to solve the criminal responsibility of accessorial crime.According to the latter, there are two kinds of totally different ideas on the scope of joint crime between the traditional and modern schools, which have been bitterly debating between the criminal common theory and the behavioral common theory until now and drawing opposite conclusions from many aspects. Because there are some defects in each school, this article supports the theory of partly criminal crime. That is to say, when more than two persons commit a crime together, it is obvious there is some overlapping between two persons. So the joint crime occurs within the overlapping. It is possible to convict separately under the premise of joint crime.In the part of principle, the author insists, when we study and solve the issues about the criminal responsibility of accessorial crime, we must insist the principle of legality and the principle of modesty.In the second part, the author expands and proves the basis of punishment. This task is attached importance by criminal academic circles in German and Japan recently, while in our country it isn't discussed consciously. Thinking of this, based on the achievements in German and Japan, combing with our criminal theory, this article is trying to do some better work in the research of accessorial crime. With regard to the basis of punishment, there are several theories including the theory of responsible complicity, the theory of illegal complicity and the theory of infringement on legal interests. The theory of infringement on legal interests can be divided into the theory of solely infringement on legal interests, revised infringement on legal interests and subordinately infringement on legal interests. In the above-mentioned theories, only the theory of infringement on legal interests sticks to it. However, complicity itself can't infringe the legal interests directly. Only through the act of principal offence, can it infringe the legal interests. So this article favors the theory of revised infringement on legal interests and regards it as the theoretical basis of accessorial crime.In the third part, the author analyses the requirements of criminal responsibility and contents, including prerequisite requirement, subjective requirement and objective requirement. First, the prerequisite requirement is that the principal offence must exit. This is an inevitable conclusion of the theory of subordinate. In addition, the author insists, principal offense must have the ability of criminal responsibility, according to our criminal theory.Second, about the object requirement, it concludes conduct and causation. Different from the principal offenses, the accessorial crime does not necessarily take any certain special conduct, but merely certain kinds of conduct. There is no limit to the pattern of aid. It can be provided by material forms and intellectual forms. Additionally, to constitute accessorial crime, the assistance must be carried out before or during the principal offender commits a crime. If helping after the event, it doesn't constitute accessorial crime. The accessorial crime can be constituted by omission, but the theory of complicity requires the defendant to have fulfilled obligation. Additionally, the objective requirement requires that, causation must be established between the accessorial crime and the offense of the principal. About the causation of aid, there are theories of single causation, causation same with principal offense and potential damage offense. There are some defects in these theories. The author insists causation unity with principal offense.Finally, about the subjective requirement, this article thinks, the subjective aspect of accessorial crime can be not fault but intent. The form of intent includes not only direct intent, but also indirect intent. But because the common affairs in daily life, such as business transactions, impose a severely challenge to knowledge in ruling the criminal responsibility of accessorial crime. When we study this issue, according to the author, restrictions are to be placed on the adoption of knowledge. As to the assistance out of indirect intent, it can be solved by establishing a single crime——facilitating offence. Moreover, about the accessorial crime by omission, it is proper to adopt visible aid single-way joint crime argument.In the forth part, this article talks about the scope of criminal responsibility which accessorial crime should bear. On the basis of principles of joint crime's criminal responsibility, the responsibility of accessorial crime is limited to the criminal facts with common intent. As to the criminal facts which the principal commits going beyond the joint intent, the accessorial crime doesn't bear responsibility. There are two factors, the author insists, that can decide the scope of criminal responsibility: the principal deviates from the original plan and the mistakes of the accessorial crime. The former can be talked from three aspects: deviates in the same constitute elements, surplus behavior of offence and aggravated consequence crime. In the first case, when the principal unintentionally deviates from the original plan, the accessorial crime has to bear the criminal responsibility; if the principal intentionally deviates from the original plan, specific circumstance are to be inquired into, so as to determine the culpability to be born by the accessorial crime. In the second case, the author insists, it can be solved according to the theory of partly criminal common crime. In the third case, the accessorial crime has to bear the culpability for the serious consequences, if any. This culpability is to be held as independent liability of negligence, but not the liability of complicity. If with nonspecific intention, the accessorial crime aids the principal in realizing nonspecific offense, therefore, the accessorial crime is to bear the liability in a nonspecific scope.The latter can be talked from two aspects: legal awareness wrong and understanding of the facts wrong. In such cases, if the mistake can negate the intention, accessorial crime doesn't bear the responsibility; if the mistake can't negate the intention, accessorial crime has to bear the responsibility.In the part of conclusion, the author summarizes the whole article and collates the views of the relevant. At the same time, the author points out the inadequacy of the paper and some important contents that need for further study. The author determines to take this as the starting point to continue his own research.