Theory Of Withdrawal From Complicity

The theory of withdrawal from complicity is used to solve the problem of whether one of the accomplices should bear the original responsibility for other accomplices’ criminal acts and results after the formation of complicity relation.Since the theory of withdrawal from complicity originated from Professor Otsuzuka’s theory of "permission of obstacle attempt",the discussion and controversy about this theory have never stopped.In Japan,"the theory of permission of obstacle attempt","the theory of separation of causality","the theory of exemption of complicity","the theory of lack of connection of will" and "the theory of analogous discontinued criminal" appeared one after another and each theory sticks to its own version.Among them,the theory of separation of causality occupies a general position in Japan,but it is still highly criticized.Compared with Japan,the research on the theory of withdrawal from complicity in China started late,and there exist different opinions with regard to this theory.In this context,it is rare to apply the theory of withdrawal from complicity to reduce the liability of accomplice in our judicial practice,which is almost zero.There are some problems such as confusion with the theory of discontinued criminal,unclear conditions of establishment of withdrawal from complicity and so on.On the one hand,this is the embodiment of the absence of the theory of withdrawal of accomplice;on the other hand,it is also the result of the expansion of the principle of joint and several offences.Therefore,the study of the theory of withdrawal from complicity can not only implement the principle of individualism and improve the accomplice system,but also solve the practical difficulties and help to improve the accuracy of measurement of penalty.The following problems need to be clarified or solved in the theory of withdrawal of complicity:Firstly,it finds out the theoretical basis of withdrawal from complicity."The theory of separation of causality" and "the theory of exemption of complicity" are both theories derived from the theory of causal accomplice.The former focuses on whether the complicity relation exists,while the latter pays more attention to whether the physical and psychological causal relationship between the behavior and the consequence is cut off.In view of the inherent disadvantage that causality（especially psychological causality）is difficult to cut off in many cases,the theory of exemption of complicity can better adapt to the ever-changing needs in practice.After the actor breaks away,other accomplices form a new mens rea and produce the final result,so the person who breaks away is not responsible for the criminal result.This is not only the inevitable requirement of reduction of illegality and accountability and the principle of suiting punishment to crime,but also the due meaning of the criminal policy of"setting up a golden bridge of retreat".Secondly,it clarifies the system status of the theory of withdrawal from complicity.After the continuous efforts of numerous scholars,the academic circle has reached a broad consensus that the theory of withdrawal from complicity and the theory of discontinued criminal belongs to different categories.These two theories not only have different requirements for validity and arbitrariness,but also have different legal effects.However,there is still a certain connection between the two theories,the establishment of withdrawal from complicity may also constitute the discontinuation of the crime.In addition,there are some differences between the theory of withdrawal from complicity,the theory of accomplice executing beyond the limit and the theory of discontinuation of crime of accomplice in terms of application and elements of establishment,etc.Thirdly,it clarifies the establishment conditions of withdrawal from complicity.According to the theory of exemption of complicity,the withdrawal accomplice can eliminate the existing complicity relation because of his own withdrawal behavior,and reach the degree that the other accomplices continue to commit crime and eventually complete the crime and must form a new complicity relation through the consensus of new mens rea.Arbitrariness and preventing others from committing crimes are not rigid elements,and they do not need the approval and consent of others,but generally require the knowledge of other accomplices.One-sided accomplice,state crime and consequential aggravated crime are slightly different in specific conditions,so they should be explained separately.Fourthly,it clarifies the consequences of withdrawal from complicity.According to the time point when the last condition of exemption of complicity is established,the withdrawal accomplice will not be responsible for the behavior and consequences of others.As for the responsibility undertaking before withdrawal,the withdrawal accomplice should bear the responsibility of criminal preparation,discontinuance of crime,atempted crime and accomplished crime according to the different stages of withdrawal and the existence of arbitrariness.At the same time,the discretionary circumstances of sentencing like the time and subjective factors of withdrawal should also be properly considered.Fifthly,it discusses the way of drawing lessons from the theory of withdrawal from complicity.As a concept corresponding to the succession of accomplice,the withdrawal from complicity should become a withdrawal mechanism in the system of accomplice.Specifically,it challenges the traditional concepts of "partial implementation and full responsibility","one person accomplished and all accomplished" and "one person started and all implemented".As for the choice of legislative mode,it is more flexible and convenient to provide relevant basis by means of judicial interpretation rather than changing the provisions of criminal law,which is in line with the actual situation of our country.