Study On The Joint Principal Offender Of Omission

The concurrence of joint principal offender and omission constitutes the joint principal offender of omission.However,due to the difference between omission and act in form and substance,as well as the doubt on the behavior and cause of omission in theory,there has been a debate on the establishment and scope of the joint principal offender of omission.However,in the judicial practice,the situation of not being a joint principal offender is widespread.For example,in the case of Yan’s intentional homicide quoted in this article,the court’s judgment conclusion needs theoretical support.Therefore,the exploration of the omission of joint principal offender is not only of theoretical significance,but also of practical needs.The first part of this paper starts from the meaning of the joint principal offender,on the basis of the analysis of the joint theory of some crimes and the common theory of behavior,distinguishes the principal offender and the accomplice,clarifies the concept boundary of the principal offender,so as to clarify the extension of the joint principal offender,and discusses the meaning of the joint principal offender.According to the meaning of joint principal offender,we can get the establishment conditions of joint principal offender,that is,the fact that there should be joint action intention subjectively and joint action objectively,and limit the establishment of joint principal offender from the above two aspects.Then,it discusses the meaning of the act of omission,expounds the way of the act of omission,and differentiates the act and the act of omission from the perspective of legal norms.It holds that the difference between the two lies in whether they violate the order norms.At the same time,it proves that the act of omission has the same important function and value to the infringement of legal interests as the act of omission,affirming the act of omission;affirming that the act of omission has the power of cause,using the objective attribution The theory of responsibility states that there is a causal relationship between omission and result;in terms of the source of obligation,combined with the source of substantive obligation,supplemented by formal elements,three sources of obligation are determined.Finally,on the basis of the comprehensive demonstration of joint principal offender and omission behavior,the author obtains the meaning of omission joint principal offender,and classifies the constituent forms according to the behavior types,namely,single type omission joint principal offender and mixed type omission joint principal offender;while from the perspective of omission type,pure omission joint principal offender and impure omission joint principal offender are classified as a joint principal offender.At the beginning of the second part of this paper,the author discusses three theories about the scope of the establishment of the joint principal offender of omission,that is,the theory of comprehensive negation,the theory of limited affirmation and the theory of comprehensive affirmation.The comprehensive negation theory either denies the existence of the joint principal offender of omission,or interprets it as a concurrent crime;the restriction theory affirms the establishment of the joint principal offender of omission in the single type of joint principal offender of omission,and in the mixed type of joint crime of omission,it mainly tends to interpret the omission as a helper,thus negating the establishment of the joint crime in this type;the comprehensive affirmation theory,The establishment of the above two types of joint principal offender of omission is affirmed,but in the mixed type of joint crime of omission,the specific analysis is emphasized.According to the role of omission in joint crime,the principal offender or helper offender is determined.Based on the analysis of the deviation of the former two theories on the understanding of the joint principal offender of omission and the rationality of the comprehensive affirmative theory,this paper agrees with the viewpoint of the comprehensive affirmative theory,and puts forward the conditions for the establishment of the joint principal offender of omission in combination with the conditions for the establishment of the joint principal offender and the non principal offender,that is,the joint obligation of act,the meaning of the joint act and the fact of the joint act As a joint principal offender,the establishment conditions should be clear.The third part of this article mainly discusses the criminal responsibility of the actor.The purpose of establishing a crime is to confirm the criminal responsibility of the perpetrator and to make him subject to the corresponding penalty.In the division and undertaking of criminal responsibility in joint crime,the principle of full responsibility and the principle of individual responsibility are mainly applied.The former can effectively attribute the result of crime to all the joint offenders,even if some of them only implement part of the constitutive act,they should be punished according to the result of all the acts;the latter analyzes the specific problems and considers the individual nature of the actor in the crime,such as the actual role of each actor in the crime,which can stop different crimes According to the subjective meaning and behavior held by the stop form,the corresponding criminal responsibility and criminal circumstances shall be determined for each actor,so as to make the punishment received by each joint offender adapt to the crime and the criminal responsibility to be undertaken,and fully reflect the implementation of the principle of the adaptation of the criminal responsibility and punishment.The above two principles of criminal responsibility should also be applied in the omission of joint principal offender.