Study On The Restriction Of Punishment Of Neutral Helping Behavior

With continuous progress of the society,the social division becomes more and more complex and detailed,and the possibility of social members being related to the crimes in normal life and work is also improved.If the behaviors of subjective knowing,objective promoting crimes,which called neutral helping behaviors,are all criminally punished,will lead to the hindering of social development,the restriction of freedom of action.Thus restricting punishment has become the mainstream position.However,with promulgating judicial interpretation and introducing new charges,our country constantly strengthen the regulation of "knowing" type of helping behavior,showing the expansion of punishment.The theoretical position can not be implemented in judicial practice,mainly because of the ambiguous definition and inconsistent penalization standard of neutral helping behavior.Below the introduction,there are four parts in this paper.The first part is an overview of neutral helping behavior.On the heterogeneous position,neutral helping behavior is a concept of transition,and is defined as "recognizing that others may act crime,objectively promoting the criminal activities,but with harmless appearance ".The appearance characteristic of neutral helping behavior is neutrality,and the essential characteristic is independent social value.The neutral helping behavior is different from neutral behavior in quantitative or subjective aspects.When finally identified as an accessory,neutral helping behavior could be common accessory or one-sided accessory.This paper divides Neutral helping behavior into three species: selling goods,providing services and fulfilling civil obligations.The second part is about status quo of neutral helping behavior.There are two incriminating modes of neutral helping behavior: accomplice and principal offender.Relevant provisions generally recognize one-sided complicity and use the legislative mode of " Offenderization of the Helping Behavior ".In judicial practice,there are three limitations in the application of defense opinions,namely frequency,scope and angle.The reasoning of judgment documents affirm subjective "knowing" arbitrarily and objective promoting effect is not measured properly.This part presents the typical cases of three types of neutral helping behavior,reiterating the position of restricting punishment from the perspective of necessity and feasibility.The third part is about unitary penalization standard of neutral helping behavior.Subjective Theory has been seldom advocated because of neglecting the investigation of objective aspect,and the theoretical debate is mainly between Objective Theory and Compromise Theory.From the introduction and analysis of foreign theories and domestic viewpoints,the two major disputes in the formulation of penalization standard are the necessity of subjective investigation and the way of objective investigation.This paper advocates Compromise Theory which based on Objective Theory,which adopts the order of investigation from the objective to the subjective.On the basis of Mixed Causation Theory,it not only examines the correlation between helping behavior,the principal offender behavior and the result of crime,but also attaches importance to the nature of helping behavior itself.On the objective side,the causality is judged from the physical and psychological aspects respectively.On the subjective side,the content and degree of "knowing" should be guaranteed to meet the requirements,so as to achieve the purpose of secondary screening.The fourth part is about multiple paths of restricting punishment of neutral helping behavior.This paper shows four ways: Objective Imputation Theory,Obviously Minor Offence,The Possibility of Expectation and The Principle of Legality.The first two ways are the refinement of the objective investigation,the Possibility of Expectation is applied in the stage of accountability,and The Principle of Legality emphasizes the accurate judgment of incrimination and corresponding charges.In the application of Objective Imputation Theory,it is necessary to focus on whether the risk is allowed by law or beyond the purpose of standard protection.Starting from the typical cases presented in the previous part,this paper expounds the judgment methods of different types of neutral helping behavior,explain and test the application of research achievements as well.