Research On The Punishment Of Abettor In Chinese Criminal Law

Chinese and foreign academics always treat the abettor as the focus of their research,which is mostly because of its uniqueness and complexity All of the abettor theories is based on the nature of the abettor.There is much debate on the abettor’s nature.Criminal scholars in Germany and Japan put forward two fundamentally different theories-the theory of subservient accomplices and the theory of independent accomplices.But the scholars of our country raise another theory with Chinese characteristics-dual character theory of abettor’s nature after they analyze the two theories’ advantages and disadvantages.This paper advocates the dual character theory from the stance of legislation and judiciary,and divides the abettor into three classes-accomplice instigator,individual instigator and the instigator who instigates a minor based on the stand of the dual character theory and do some studies on the instigator’s foundation of punishment,punishment principles and the specific punishment in two special cases.This paper thinks the foundation of the punishments to abettors should insist the rule of the unification of subjectivity and objectivity, not only taking more consideration on the instigating act’s serious harm to society,but also considering the abettor’s social harmfulness and personal danger.In the issue of general principles of the punishments,this paper advocates the instigator who instigates mental patients with limit responsibility ability to commit a crime may be given a heavier punishment and the man who instigates a minor should be given a heavier punishment as an instigator rather than indirect criminal.Two special cases(the status violates problem and instigate suicide)are analyzed.Concerning the first case in which someone who don’t have the crime status instigates someone with the crime status to perpetrate a status crime,if part of crimes’ act of perpetrating can be carried out by people who don’t have the crime status,then the instigating act is absorbed by the act of perpetrating.Concerning the second case in which an instigator who abets someone to end his own life will convict voluntary manslaughter, the instigator may be given a lighter punishment,reduced punishment or be exempted from punishment in different cases.