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Study on Joint Crimes and Status

Author: FanYuXing
Tutor: PanHong
School: Guizhou University
Course: Legal
Keywords: Joint crimes standard status nonstandard status conviction punishment
CLC: D924.11
Type: Master's thesis
Year: 2009
Downloads: 40
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Abstract


Joint crimes theories are situated in the criminal forms of general theories.Status is an issue involved in criminal constitutive elements,and is an special condition of some criminal subjects.The overlap between joint crimes and status will make the conviction for a case very difficult.The penal codes of some countries have provisions about the relation of joint crimes and status,but there are few contents in Chinese criminal law.So when facing these questions,we may deal with it only through the theories and spirits of criminal law.The relation between joint crimes and status is shown by three aspects:joint crimes and standard status,joint crimes and nonstandard status,joint crimes and negative status.On the relation of joint crimes and standard status,firstly,we should handle the issue whether an offender with status and an offender without status can conduct joint crimes or not.There are different viewpoints about it in criminal field.We think it scientific to make decisions according to state of affairs.In specific case,they can constitute standard status joint offenders if a person can instigate or aid others to commit a crime or conduct Ausf hrung commonly.If not,they can’t constitute standard status joint offenders.Secondly,we should solve the problem of conviction about standard status crimes:(1)When a person without status instigates or aids another person with status to commit a crime,the latter is treated as perpetrator and the former is considered as instigator or aiding offender.(2)When a person with status instigates or aids another person without status to commit a crime,if the person without status can’t constitute crimes in this circumstance,we only treat the former as indirect principal offender;if the person without status can conduct crimes,①when the person with status takes advantage of his status,he will constitute indirect principal offender,the other will be accessories;②when the person with status doesn’t take advantage of his status,they can’t constitute standard status joint offenders but joint offenders of other crimes.(3)When the persons with status and without status conduct Ausf hrung jointly,there are several theories,such as viewpoint of conviction separately,viewpoint of principal,viewpoint of status, viewpoint of major object,viewpoint of Ausf hrung and viewpoint of Ausf hrung of status.The author raises the method to convict according to the major Ausf hrung(convict and punish separately if they are identical).(4)When the subjects both have status and conduct common crimes,there are two situations.The first situation is that they have the same status.If they take advantage of their status,they probably both be joint perpetrators or only one of them be indirect principal offender.If they don’t take advantage of their status,and the law stipulate definitely that taking advantage of one’s office is a constitutive element of the crime,they can’t constitute joint perpetrators.If the law stipulate that taking advantage of one’s office isn’t the requisite of the crime,and that the offender must have the specific status,they can constitute joint perpetrators.The second situation is that the persons owning different status conduct an Ausf hrung commonly.The author approves some scholar’s principle to convict crimes according to actions of the major authority(convict and punish separately when we can’t distinguish between the major and second one).On the relation of joint crimes and nonstandard status(affecting the degree of punishment),there are two situations.The first situation is that the status doesn’t affect the nature of crime but the degree of punishment.In this case,the person without status and the one with status will constitute offenders of the same crime,but the former will be punished according to usual penalty,and the latter will be given a heavier or lesser punishment or given mitigation of penalty.The second situation is that the status affect not only the degree of measuring punishment but the nature of crime.There are three situations too.(1)The person without status and the person with status conduct nonstandard status crimes.In foreign countries,there are theory of convicting and punishing separately,theory of convicting commonly and sentencing separately.The author’s opinion is as below.If the person without status participates in the actions of the person with status who takes advantage of his office, they will all be convicted according to the crimes of status,but they will be punished separately according to their status.If not,they will be convicted and punished separately according to their own actions.(2)The person without status instigates or aids the person with status to conduct nonstandard status crimes.They will all be convicted according to nonstandard status crimes,and the person without status is instigator or aiding offender.(3)The person with status instigates or aids the person without status to conduct crimes.In Japording to the crimes which are constituted by his own Ausf hrung,and the person wan there are two treatments which are different in the conviction of the person with status.We think that the person without status should be convicted and punished accith status should be convicted and punished as instigator or aiding offender of the crimes which are constituted by the person’s actions without status.On the relation of joint crimes and negative status,no matter what forms of joint crimes,the person with status usually doesn’t constitute offender or doesn’t be punished,and the person without status probably constitutes indirect perpetrator or instigator or perpetrator of other crimes.There are some legislative suggestions in the last part.We have not the statutes on the joint conspiracy of status crime in the criminal law now.Therefore,it is necessary to consummate the legislation on the issue by refer to the successful experience abroad.

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CLC: > Political, legal > Legal > Chinese law > Criminal law > General Provisions > Crime
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