Study On The Neutral Helping Behavior Of Criminal Law

With the refinement of the social division of labor, some behaviors, which seem harmless in form, but objectively with the acceleration of bringing about more crime in our society, have often appeared, and it is usually called the neutral help behavior in criminal law theory. According to the general joint crime theory, if there is causality between the neutral help behavior and the harmful consequence made by principal offender, and people, who offered neutral help behavior, can recognize principal offender’s crime, then it seems undoubtedly that this kind of behavior should be defined as Beihilfe. However, whether this neutral help behavior, which is harmless in form, can be defined as Beihilfe still remains controversial in the criminal law theory and judicial practice. For example, a bank employee clearly knows depositors encounter telecom fraud, but still offers depositors withdraw services; Taxi drivers clearly know someone’s going somewhere for murder, but still transports him to the destination; Chef clearly knows somebody runs casino, but still provides food for them; Gas station staff clearly knows someone’s driving for stealing, but still provides the vehicle refueling services; Domestic service personnel clearly knows someone steals a baby for the purpose of blackmail, but still being willing to look after the baby, and so on. It seems these behaviors meet the constitutive requirements of being Beihilfe, and it seems there are laws to follow to punish them as criminals in normative sense of law. However, because of the repeatability of content, the uncertainty of objects, the fungibility of the behavior, daily life and one-sided help features that neutral help behavior contains, we have to consider whether neutral help behavior can be defined as Beihilfe and gets punished by laws accordingly. The academy’s study on neutral help behavior is just an urgent attempt to provide answers to the above problems.The problem of neutral help behavior originated in Germany and attracted heated discussion among many scholars of the criminal law. But in our country, this kind of discussion is not popular. According to the current legislative cases and relevant extraterritorial criminal law theory, different points of view have also appeared during the few domestic discussion. But overall punishment theory, which means neutral help behavior shall all be defined as Beihilfe, is not popular and supported at all. Almost all domestic scholars support restricted punishment theory, which means necessary limits should be made to help define neutral behaviors from crime behaviors, but big differences still remain in realization approach and limiting degree. Through analyzing all kinds of inner theories of restricted punishment theory, the comprehensive theory on the basis of objective imputation theory takes the obvious advantage in telling neutral help behavior from being Beihilfe.This paper shall be divided into three parts, about 46,800 words including about 3000 words of footnotes.The first part introduces the neutral help behavior theory and practice disputes, the concept, characteristics and classification of neutral help behavior. The study of neutral help behavior originated in Germany, and it has not yet become the research upsurge in our country. Though punishable neutral help behavior is just a situation of being Beihilfe, it involves all aspects of social life, in daily life, merchandise sales, service delivery and so on. Because of the daily life and business feature, the repeatability of content and one-sided help characteristics that neutral help behavior contains, which make it rather different from traditional Beihilfe, it is necessary to specialize in this issue in criminal law theory.The second part expounds the basic theory of neutral help behavior, focuses on introducing various theories of restricted punishment theory and making a brief evaluation and analysis. This paper chooses to stand on the comprehensive theory on the basis of the objective imputation theory, to discuss around the point whether neutral help behavior makes the risk that the law does not allow, and then the imputation of the subjective and objective standard for neutral help behavior is summarized. At the same time, combining with the allowed risk theory, the form of ruling out imputation and actual standard for neutral help behavior is summarized.The third part is mainly to focus on the research on classifying neutral help behavior. This paper divides neutral help behavior into three types, neutral help behavior in daily life, neutral help behavior in commodity sales and neutral help behavior in service delivery, to be further demonstrated by the judging standards proposed in the second part. Therefore, this part is not only about carrying out the objective imputation theory, but also about testing the imputation criteria.