Research On The Problem Of The Neutral Assistance

In the real society,there are a large number of life behaviors or business behaviors related to criminal behaviors occasionally,which indirectly infringe on the legal interests.Although the actor has certain knowledge of criminal act of another,the acting is to achieve subjective goals independent from crime,which have a legitimate meaning of life and business significance.This type of special behavior is called “neutral assistance”.The neutral assistance has two attributes,namely,the infringement of legal interests and the legitimacy of life and business.This results that the traditional constitutive requirements of accessory face many difficulties in regulating such behaviors.Therefore,domestic and foreign doctrines and practices have made many useful explorations to solve the problem of the scope of the penalty of neutral assistance,but these theories have limitations,ignoring the overall review of the constituent elements of the accessory,which caused the problem has not been solved so far.As neutral assistance cases become more common,the scope of their penalties needs to be clarified to better guide judicial practice.This paper is divided into four chapters,about 37,000 words:Chapter 1: Overview of the Neutral Assistance.First of all,it clears that the core of the problem is how to distinguish between punishable accessory and non-punishable neutral assistance.By properly handling the relationship between neutral assistance and accessory,the Civil liberties and the protection of criminal law should be balanced.Then,it introduces two kinds of ideas that the academic community has defined the concept of neutral assistance.By analyzing the two ideas,author agree on the heterogeneity position and put forward own definition,that is,neutral assistance refers to behaviors—for achieving life legal benefits or business legal benefits that are independent from crime —accidentally link with others’ criminal behavior and objectively facilitate the criminal activities.Chapter 2: Practical Dispute of the Neutral Assistance Problem.It introduces the attitudes of Germany,Japan and China to dealing with the problem of neutral assistance in practice,reflecting that China’s judicial practice does not really attach importance to the neutral assistance problem and ignores the value of testing the constitutive requirement of accessory as a touchstone.As a result,the scope of punishment for accessory is too large to protect citizens’ freedom of action.Chapter 3: Theoretical Dispute of the Neutral Assistance Problem.There are many foreign theories about how to limit the punishment of neutral assistance;the general path is to start from the subjective elements by distinguishing the intentional content and the degree of understanding,or to start from the objective behavior by denying the attribute or causal attribution of accessory.There is a big dispute between the various theories,and a unified view has not yet been formed.After evaluating and analyzing these theories,it is concluded that the solution should not be to set special standards on the subjective or objective aspect,but to re-examine the constitutive requirement of accessory.In this way,the scope of punishment for accessory could be reasonably limited and the punishability of some neutral assistance could be ruled outChapter 4: Solution of the Neutral Assistance Problem.For helping causality,author suggests modify the causal relationship of accessory from conditional causality to promoting causality,that is,helping behaviors should promote the principal offender’s behaviors and outcomes in a physical or psychological way in reality.The judgment of physical causality focuses on whether the helping behavior actually promotes the act and the result of the principal offender,and whether the helping behavior raises the risk.The psychological causality requires that the helping behavior must sustain or enhance the determination of the principal offender until the outcome occurs.And the effect must be evaluated in the same way as the promotion effect of physical causality.For help deliberate,author thinks cognition factors of help deliberate should be subdivided to cognition of the act,the results,and the facts of help causality of the offense.And doer should be fully aware of the above specific facts.The will factors of help deliberate includes the psychological state of helping behavior to promote the offense and the psychological state of the infringement caused by the offense,including both positive pursuit and negative laissez-faire.