Co-determination and co-perpetrators of crime classification
【Summary】 common crime is an intentional crime refers to two or more persons jointly. October 1, 1997 implementation of the "Criminal Law" Article Article 25-29 of
common crime-related issues has made explicit stipulations. These provisions for the effective punishment of crime together provide a legal weapon for the theoretical study pointed out the direction of common crimes. Joint offense is a single crime is more dangerous, more serious forms of crime, and the liability of co-perpetrators is also
relatively complex. Therefore, the correct understanding and grasp of common crime theories to guide practice, has a major and far-reaching significance. This paper finds
that common crime and common crime, the issue of classification of people to make some humble opinion. This paper is divided into two majority, including the identification of common crime, common crime and the criminal classification of people. This article advocates the establishment of a common crime, must meet three
conditions: to be two or more persons, there must be a common intent, there must be a common behavior. In judicial practice, we should note that the results of negligence combine to cause the same damage, indirect principal offender, "off limits" behavior, while not considered guilty of such a common crime situations. Can be divided into principal co-perpetrator, accomplice, coerced offender, instigator four categories. In practice, should pay attention to the relationship between the principal and the
primary elements, the distinction between principal and accomplice, an accomplice with the crime, the relationship between the morphology. In short, the joint criminal theory is profound, there are many aspects of intensive understand and grasp.
Key words co-intentional complicity
As opposed to a separate crime, the common crime is a complex crime. According to China's Criminal Law Article 25, paragraph 1, provides that refers to two or more common crime is a common intentional crime. This definition of science summed up a common crime, the inherent properties, reflects the unity of subjective and objective principles for the effective punishment of common crimes has provided a legal weapon for the theoretical study pointed out the direction of common crimes. Joint offense is considered a more dangerous than the single individual criminal, more serious forms of crime. Because the objective of crime increase in the number of people, so that their capacity for crime bigger, able to implement some single person can not be implemented in crime, especially crimes that endanger national security; the crime can also cause more damage. In the subjective, common crime, there are mutual between the incentives, the role of a firm will of crime, crime will always be able to make weak people strong mens rea, even the common crimes committed by a single person can not commit evil. Joint criminal responsibility for more complex. In a single individual criminal occasions, "one person, one person to do things as" responsibility
straightforward. Occasions in the crime, involving the joint criminal liability of the distinction between the size of the problem with the differential treatment to deal with
them than the single individual crime much more complex. Therefore, the correct
understanding and grasp of common crime, has a theory to guide practice, a significant and far-reaching significance. Now, I will be the following two issues, to talk about some of my personal views and comments.
(A) the identification of common crime,
How accurate identification of common crime, must accurately grasp the conditions for the establishment of a common crime. With separate crimes, the establishment of a common crime, constitutes a crime is still consistent with the premise that "two or
more persons" must be consistent with the main elements of crime; the "common intent" must be consistent with the subjective elements of a crime, deliberately; "common behavior of "must be consistent with the objective elements of a criminal act;
and so on. If one does not meet the elements that constitute a crime, it is not a crime, just do not care a common criminal. Therefore, elements of crime, constitutes a sense, the common criminal, and there is no specificity; and common crime, the special nature
of the performance of the various actors in the criminal intent and criminal behavior of "common" this point. According to China's criminal law, common crime, the establishment of conditions are: must be two or more persons, there must be a common
intent, there must be a common behavior.
One must be two or more people
Does not meet the age of criminal responsibility or no criminal responsibility of the person can not become a separate crime, the main body, the same can not be the
subject of common crimes. Thus, with the main qualifications of those who were not reached an age of criminal responsibility, the main body of qualified people do not have a "common criminal", and is not considered a common crime, his criminal
responsibility by the person who qualified with the main body. A qualified person with the instigation of a subject does not meet the age of criminal responsibility for crimes committed, nor considered to be a common crime, his criminal responsibility by the
person who has the main qualification. This situation that the aider and abettor is used as a tool of others, are guilty of indirect practice. Unit crime, although there may be many units, the participation of members, but it now appears as a legal subject, and is
not considered a common criminal. Therefore, one of several crimes committed by units of the main persons responsible for crimes committed by units bear criminal responsibility, the only criminal liability based on individual criminal responsibility.
Crimes committed by units belonging to a common crime, the case may be: (1) two or more units of common crime; (2) a unit and a natural criminal.
Second, there must be a common criminal intention
Intentionally committed the crimes together with two meanings: one meaning is the
various co-perpetrators of the crimes are intentional. The second layer of meaning is a common crime liaison between the existence of meaning, aware of crime in the collaborative. Occasions in the crime, must have two layers of meaning, only considered
to have a common criminal intent. First of all, the common deliberately asked to co-
perpetrators were aware of the nature of the common criminal acts endanger the results of the community and hope that the results of the occurrence of harm or laissez-
faire. The so-called same criminal intent, it means each person of the same offense or an accomplice in the crime of possession of several deliberate, and this only requires deliberately within the limits prescribed in the Penal Code the same as the form does
not require deliberate and concrete are identical. Deliberately form, the direct intent of
both parties, both sides are indirect intention, as well as the other party for direct intentional indirect intentional, as long as the same criminal intent may apply to the establishment of a common criminal. The specific content of the intentional, the only require the total of prisoners have a legal understanding of factors and will factor in, even if the specific content of deliberately not identical, but also the establishment of a common criminal. Second, the common criminal intention of prisoners were asked to subjectively communicate with each other, contact each other, aware that they are not implemented in an isolated crime, but together with others in the crime. However, usually this is a common practice for the purposes of the Joint Principal guilty of that. Helping offenders, the one-sided accomplice can be established. For example, a murder Jiamou know B C A, while C a hate themselves, hoping to kill by the hands of a C B A. Therefore offered to lend B own a hunting shotgun. A B C use Jiamou shotgun will be a kill. B A I do not know the real intention of the gun by Jiamou on a case B, there is no question of complicity with the Jiamou pose, however, intends to help B Jiamou a murder, an accomplice may constitute Jiamou (help offenders). Right Jiamou can be guilty of intentional homicide with the help convicted and punished.
Moreover, according to judicial interpretation, traffic accident, the vehicle owners,
passengers, unit executive officer instructed the driver escaped the accident caused the death of the victim to an accomplice in the crime punishable traffic accident. Here to recognize the existence of an accomplice criminal negligence, can only serve as a special case to obtain information.
Time for the formation of a common criminal intention, which can be in advance, or pre-pass to seek a common crime; can also do that in the criminal process, which is
known as the pre-free-pass to seek a common criminal. However, if it is consummated the crime until after the perpetrators of crime to know the facts, and agreed, and do not believe that an accomplice. In addition, the formation of joint criminal intent means
no special restrictions. May be explicit or it can be implied; could be accomplished through language, writing expression, can also be the body posture, facial expressions, to express their eyes.
Third, we must have a common criminal acts
Here the alleged joint criminal behavior is a broad sense, both the implementation of behavior, but also from organizing, instigating, aiding, collusion. In accordance with the division of labor is different from the common crime are committed to acts, called
the implementation of the law; did not personally take to help to carry out criminal acts, but only those who are called to help break the law; only abetting acts, called the abettor. Therefore, the instigator, to help offenders are usually committed to
implementing the implementation of the conduct of abet, help.
Manifestations of a common criminal acts may occur in three ways: First, a common effect, namely, a total of prisoners, acts are acts; 2 is a common omission, namely, a total of prisoners, acts are omissions; third, and omission combination, that is part of the total behavior of the prisoner as part of inmate behavior is not to act. Therefore; in a conspiracy case, do not also think that as a common criminal acts. The "conspiracy" whether the person has not been involved in the establishment of an accomplice to implement it? This involves the understanding of collusion, in other words it depends on how the conspiracy, I think there is a conspiracy in order to identify with the complicity of the behavior and intentional complicity could be established. There conspiracy was not involved in criminal practice, there are three kinds of possibilities: First, by another person, without hands-on. For example, some leaders of organized
crime, or the backbone of participation in the conspiracy, but not personally involved.
Second, for reasons other than the will encounter did not participate in practice. 3 is a waiver. What these three cases, "conspiracy" was not involved in implementation, they can be an accomplice.
Fourth, the identification of common crime do not think that should be noted that several cases of common crime: (1) the results of negligence combine to cause the same damage, and does not constitute an accomplice. Came back said that China's criminal
law focused on a common criminal to be a common intentional crime. However, in the hit and run traffic deaths caused by exceptional occasions.
(2) indirect perpetrator does not hold an accomplice. The so-called indirect
accomplices, refers to the behavior of others as a tool utilized. This involves the implementation of a classification offenders. Refers to the implementation of the implementation of guilty under the Criminal perpetrators of criminal acts, or behavior. Executor is usually the direct use of their limbs to carry out criminal acts, such as asking for pick-pocketing, Judao murder, etc., that is a direct implementation of crime. In addition, direct the implementation of crime also includes the use of tools of crime, such as dog bites incite people (injury), training monkeys burglary and so on. However, there is the use of the behavior of others to the implementation of the crime situation, in this case, known as indirect. Because in such an occasion has been used is not no will, awareness tool, or animals, but there will, conscious of the "people", an independent crime, the shape of the main person. When the perpetrator of crime of the main advantage of this shape of the person to direct the implementation of crime, being used are "direct the implementation of offender" committed to implement the use of those who indirectly. Indirect Executor There are two main situations: first, the ability to use no obligation to include the conduct does not meet the age of criminal responsibility, for
example, the use of minors to the theft. The second is the use of the innocent, uninformed behavior.
(3) non-pass in advance to seek a haven, harboring, concealment, disposal of stolen goods acts are not punished as an accomplice. Come back, if there is pass in advance to
seek the respect punished as an accomplice. It is noteworthy problem is to determine in advance the criteria after that? The standard generally is consummated. Is not consummated prior, has been consummated is the ex post facto.
(4) "off limits" behavior is not considered an accomplice. Too limited to conduct refers to the process in the crime, which have a common criminal who carried out joint criminal intent beyond the scope of criminal acts. This exceeds the scope of joint criminal behavior is called intentional over-limit behavior of an accomplice. For an
accomplice in the act took place off limits by the perpetrators bear the burden alone, the other co-offender is not liable.
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(5) at the same time is not guilty of complicity. At the same time the so-called
convictions, and is two more than the same time and hurt the same objects. If you do not have access to seek, there is no synergy, just a chance encounter, get their own
property, and is also guilty, does not constitute an accomplice.
(6) one-sided issue of complicity. The so-called one-sided accomplice is defined as
criminal acts of others to help clandestine behavior. Namely, crimes of others "secretly help solve the problem" behavior. So, to help people who secretly assisted him, or
whether the composition and being an accomplice to help it? Because secretly helping those aspects of meaning that only one-way, there is no way to help others from being
meaning to contact, it is a one-way an accomplice. For those who have been helping
run, I wonder if there secretly to help, nature does not exist and help people form a common crime.
(7) intentional acts of criminal behavior and criminal negligence does not hold an
accomplice. If regulators Jiamou dereliction of duty, the offender took the opportunity to escape a B, not the establishment of an accomplice. Jiamou can constitute the crime of dereliction of duty resulted in escape of detainees, B constitutes a crime of escape.
(8) has implemented the relevant intentional criminal acts, and there are no subjective contact, not the establishment of an accomplice. Such as: A B Jiamou injury, after the departure of A, C and A because other reason, but also hurt a B. Jiamou and C does
not hold an accomplice.
In summary, we find that the common crime in our country finds particularly important point is to grasp the intent there is no common criminal. And this sure is on two levels: one level for each of a common criminal who committed the crime for the
common itself has deliberately; if deliberately inconsistent, does not hold an accomplice. The second level is a common crime liaison between the existence of mens rea. If there is no mens rea to contact and does not constitute an accomplice, if not
established at the same time guilty of complicity. Only if it has two levels of intentional circumstances, can be considered as a common criminal. So, at the same time committing in advance not to seek a haven pass, transfer, acquisition, sale of stolen
goods act, prior non-pass to seek the hiding, shielding behavior, too limited to acts of criminal negligence not to set up an accomplice, in fact, primarily because of lack of a common criminal intent rather than the establishment of accomplice. As for the one-
sided an accomplice, for the innocent is not considered an accomplice, but secretly assisted him for the only people who have advocated the idea of dealing with an accomplice.
(B) the co-perpetrators of the Classification and criminal liability
People for the common crime categories and provides the principle of the corresponding penalties are conducive to the proper address common crime. China's criminal law provides for a principal, accomplice, coerced offender and abettor of four.
Organizing, leading criminal groups to carry out criminal activities or in the crime play a major role, is principal. In the common crime played a secondary or supplementary role, is an accomplice; for an accomplice, it should be lighter, to reduce or waive
penalties. Coerced participation in a criminal, is coerced offender, should be based on circumstances of the crime, reduce or waive penalties. To inducement, incite or otherwise intentionally solicits another person a crime, is the instigator, shall be in
accordance with his role in the crime punished.
First, the relationship between the principal and the primary elements
Principal usually includes two kinds of people: (1) organized crime ringleader; (2) play a major role in other criminal elements. The primary elements are divided into two
categories: First, criminal groups in the primary molecules; Second, crime mob ringleader. However, the main culprit in the crime is not necessarily the primary elements, because the criminal groups, in addition to the primary elements are the
main culprit, the other criminals also play a major role in principal, but they are not the primary elements. Constitutes a crime, common crime, in the mob case, in principle, can also be found in which the primary elements are the main culprit.
However, in mob does not constitute a crime, the case of common crime (such as criminal law, punishment is only the primary elements, while the ringleader, only one time), there is no principal, an accomplice of the points, one of the principal ringleader
of course, does not matter. Thus, the primary elements of crime mob is not necessarily principal. The culprit is not necessarily the primary elements, and sometimes also an active participant.
Second, the distinction between principal and accomplice
An accomplice is relative to the principal purposes. Principal is the central figure in a common crime, there is no principal can not be the establishment of a common criminal. In the crime, only the principal (subject to two or more people) is not an
accomplice of the phenomenon exists, but only the phenomenon of principal is not an accomplice can not exist.
In dealing with common crimes, the distinction between a principal, an accomplice is often necessary to work, because it involves the liability of an accomplice. The
complexity of an accomplice that is, how is the total of prisoners shared responsibility. Principal, accomplice depends largely on the difference between "role" in size. How to determine the role of the size of it? Mainly depends on so few points: First, from the causes of point of view, who is predisposed to cause persons; 2 the implementation of the process from the crime to see who is the leading crime, dominant; 3 from the effects of view, who is the main cause those consequences; four from the interests of view, who is the biggest beneficiary of a crime. The role of the larger is the main culprit; role of the smaller is the accomplice.
If the role of co-perpetrators comparable, it is difficult to determine the role of size,
you can have as a principal punishment, but they should not have as an accessory punishment. Principal, an accomplice of the difference is relative, is in the same case in the co-perpetrator for the purposes of comparison. A case can not be the case with the
B main, an accessory for comparison. In some common crimes, the principal decided to nature of the case. If the relevant judicial interpretations of the regulations, companies, enterprises or other units, do not have the status of national staff who colluded with the
national staff, respectively, to facilitate the use of their position, so that together the units of property for its own account for some of the illegal, according to principal of the convicted of criminal nature.
Third, with regard to the relationship between an accomplice and crime patterns
Patterns of crime refers to crimes consummated, preparation and attempt. An accomplice with the crime, the relationship between morphology, in part, under the principle of overall responsibility for the identified, while others do not. Mainly in the following three cases:
The first is simply an accomplice in the crime that is common to implement the occasion: one to enable completion of the crime, an accomplice as a whole
consummated, by all assume completion of the guilt of prisoners. A total of prisoners need not consider the other outstanding issue of the crime, but consider the role of the size of the distinction between a principal, accessory problems. If the entire joint
criminal attributed attempted, all the people who have set up joint criminal attempt to commit any. If all of the same suspension of prisoners a crime, natural all co-
perpetrators of crime have been set up suspension.
The second situation is a common crime in complex situations, because, apart from the implementation of committed outside, there is also an instigator or help commit, usually subordinate to the whole process of the implementation of a common crime committed process. If the completion of the implementation of guilty of committing,
aiding and abetting commit or help commit also committed by an accomplished treatment; if implemented, the implementation of attempted commit, aiding and abetting attempted commit or help commit is committed, be punished for committing
The third situation is that some prisoners were suspended. This situation is more complex. Specifically identified should grasp the two major principles: First, they must have a validity. The lack of effectiveness alone can not set up the middle and upper.
The validity of the results including effective in preventing crime from occurring; or effectively eliminate their previous behavior on the role of crime. Committed to help set up a separate suspended, must be effectively withdraw their help; abetting crimes
committed to the establishment of an independent suspension, you must be abetting the effective elimination of criminal intent; the introduction of the automatic stay committed crimes as long as I give up crime, usually with the effectiveness of unit set up the suspension of crime; in the common practice of the occasion, some of which co-
perpetrators of crime to be set up suspension, and must be effectively prevent other crimes, people have an accomplished crime is carried out. Secondly, some acts of
complicity to suspend the effectiveness of the suspension is only in themselves, less than in the other co-perpetrators.
In conclusion, the identification of common crime do not constitute a common crime, several cases, co-perpetrator theory, principal and primary elements, principal and an accomplice, an accomplice with the crime patterns and other aspects of the relationship between the number of individuals talked about their views and insights. With regard
to the theory of joint criminal profound, I only elaborate some of these issues, there are many aspects of intensive understand and grasp. Are inappropriate for you to correct me.
1, Chen Xingliang editor: "2000 National Bar Examination Zhidingyongshu", Law Press, 2000 edition;
Second, Zhang Mingkai editor: "2001 National Bar Examination Zhidingyongshu", Law Press, 2001 edition;
Third, Ruan Qilin book: "foundations of criminal law class notes," the Chinese
People's Public Security University Press, 2003 edition.
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