Reflection On And Perfection To China’s Legislation Of Regarding Aiding Act As Principal Offender

The regularization of aiding act is a legislative model that responds to the enhancement of the independence of aiding act and the increase of social harm,and promotes the early intervention of criminal law by stipulating some aiding acts as serious criminal acts,preventing the emergence of serious social consequences,and reflecting the criminal concept of "hitting early and hitting small" in risk society.However,helping to correct the offender is a new legislative phenomenon,which challenges the traditional theory of complicity subordination,and there are also problems in legislative norms such as unclear expression of crimes,incomplete scope of regulation,irregular standards for criminalization,and inconsistent penal provisions.On the basis of combing through existing legislation and analyzing legislative theories,this article will put forward suggestions for improving legislative deficiencies,with a view to seeking a balance between helping the development of the rightful act and observing the principle of humility in criminal law.This article expands on the following four sections.The first part,the classification study of existing legislative phenomena.This part classifies the legislative provisions on helping to commit a crime in the existing legislation,and divides the legislation on helping the offender into three types: tolerance,neutral transportation and ex post facto assistance from a broad perspective;from a narrow sense,it is divided into three types of regular offense: funding type,help introduction type and provision of specific content type,and analyzes the substantive and formal basis of the regular offender legislation to determine the research object and research status of this paper.The second part summarizes the theory of legislation.This part first analyzes the relevant theories of the main offender and the accomplice,understands the difference between the main offender and the accomplice in the subjective and objective aspects of the criminal process,and leads to the development of the theory of the right offense of the aiding act based on the inadequacy of the theory of formal objectivity,subjectivity and substantive objectivity;discusses the subordinate nature and independence of the accomplice,and clarifies the rationality of the complicit subordinate attribute;summarizes the theoretical viewpoint of the three countries of Germany,Japan,and China in helping the right offense,clarifies the theoretical controversy of the right offense of the aiding act from the perspective of the social harm and legislative logic of the aiding act,and realizes the main and independent nature of our country.The theory of accessories is self-consistent with the theory of the main offender and the accomplice,affirming the promotion of the behavior from the position of the minimum subordinate attribute,giving play to the prerequisite nature of the positive criminalization legislative model,effectively responding to the financing of terrorist crimes,cybercrime and other socially harmful but independent assistance behaviors,and making up for the lag in criminal legislation.The third part reflects on the value of legislation and the inadequacies of legislation.The regularization of assisting behavior is the embodiment of the positive criminal law concept,which is conducive to the characterization of criminal acts,realizes the connection between the main offender and the helper offender,implements the principle of criminal law,tightens the criminal law network,and improves the criminal law system.The regular offender legislation is also a legislative act that closely follows the needs of social development and meets the requirements of criminal policy,and is a key move to respond to the concerns of the people and fill the loopholes in the provisions of the criminal law.However,in the legislative norms,there are the following four aspects of the problem: first,some of the crimes are general and abstract,the descriptions are too simple,resulting in confusion in the application of punishment,affecting the fairness of punishment in various places;second,the legislative provisions are not comprehensive,and in some areas,the harm to aiding act is serious but there is no legal regulation,and it is easy to promote the criminal atmosphere of the perpetrators endangering society if the behavior regulation is not timely;third,the criminalization standards of some help acts are not clear,resulting in false charges or disorderly application,affecting the application of the right offender legislation.Fourth,some criminal punishment provisions are unbalanced,there are similar criminal acts but different punishments,and there are also situations where the statutory maximum or minimum punishment for helping behavior is not in harmony with the provisions on the punishment of the assisted behavior,which violates the principle of adapting criminal responsibility to punishment,and even provides convenience for criminals to evade punishment.The above outstanding problems affect the long-term development of the legislative model,so that the effect of helping the regularization of acts on preventing crimes has been greatly reduced,and it is urgent to adjust and improve legislative provisions.The fourth part is to put forward suggestions for legislative improvement.Fully analyze the criminal punishability and social harm of assistive acts,and on this basis amend legislative provisions from four aspects: First,standardize legislative expressions,clearly describe crimes by enumerating criminal methods,issuing legislative interpretations,and applying published legislative interpretations of implementing acts,and improve the provisions on objective acts in laws.Second,expand the scope of application,include some of the assistance behaviors in the fields of food safety,cybercrime,and environmental protection into the scope of regulation,add crimes such as "helping to produce and sell counterfeit and shoddy food and drugs" and "help pollute the environment" and other crimes,attach importance to the protection of interests such as online copyright and personal information,and make good use of the criminal law norms for online crime assistance;appropriately increase the provisions on unit crimes,especially with the development of science and technological updates tend to collectivized and organized aiding acts,and severely crack down on chained aiding acts.In addition,grasp the criteria for criminalization,make them tend to be collectivize and systematic,improve legislative techniques,consider legislative terms,consider regional differences,grasp the degree of infringement of legal benefits,and solve the problems of inconsistent thresholds for criminalization and scattered legislation.Finally,it is necessary to set penalties in a balanced manner,pay attention to the uniformity of punishment for similar crimes and the convergence of punishment grades,and be good at using property punishment to strengthen the deterrent effect of criminal punishment and the effect of crime prevention.