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The Research of Joint Principal Offender Issues

Author: ZhangChi
Tutor: CaiJun
School: Henan University
Course: Criminal Law
Keywords: Joint Principal Offender Unfinished Criminal Pattern Status Recognition Mistake
CLC: D924.11
Type: Master's thesis
Year: 2011
Downloads: 90
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Abstract

Joint Principal Offender (JPO) is an essential concept in Criminal Law. In some countries such as Germany and Japan, which belong to the Continental Law System, JPO is a legal category of joint offence. Therefore, their research on JPO is fairly profound. In our Criminal Law, the classification of joint offenders employs the method of function classification. JOP has not yet been considered as a legal class of joint offence within our Criminal Law System. However, in judicial practices, JOP is a common form of joint offence thus deserves in-depth studying. The theory of JOP itself is board and extensive. Yet, the research of JOP in our country is still at its beginning stage. Meanwhile, numerous disputes about JOP do exist in judicial practices. Based on Chinese Criminal Law theory as well as utilizing related foreign research findings, this thesis discusses the appropriate JOP theory which is commensurate with current China’s actual conditions. It also hopes to make some contributions to Chinese JOP research and arouse further discussions.Apart from Introduction and Conclusions, this thesis consists of five chapters.Chapter One: the basic theory of JOP. Firstly, it analyzes the concept of JOP in depth deriving logically from the objective Accomplice Theory. According to the standard of whether constitutive requirement behavior as specified in Criminal Law is acted, JOP is defined as: two or more persons who intentionally commit crime stated by Specific Provisions of Criminal Law that is also objectively harmful to legal benefits. It then proposes my own understanding regarding the dispute on the nature of JOP. Subsequently, it emphasizes the theoretical advantage of Partial Crime Commonness Theory which is underpinned by the contrariety of Crime Commonness Theory and Behavioral Commonness Theory. Meanwhile, specific applications of Crime Commonness Theory are presented. Lastly, it talks about the composing conditions of JOP in terms of“Joint Conducting Intention of the Conductor”and“Joint Conducting Fact”.Chapter Two: JOP and Unfinished Criminal Pattern. Initially, it discusses the concepts of JOP in the preparation of a crime and the criminal preparation of the JOP. This explains the relationship between JOP and The Preparation of A Crime. After that, it explicates that the relationship between JOP and Attempted Offense is reflected in the aspects of their commencing of a crime and attempting of a crime. In the end, it discusses JOP and Discontinuation of A Crime. Moreover, it explores the composing conditions of Discontinuation of A Crime, its Timeliness, Automaticity and Effectiveness.Chapter Three: JOP and its Status. Primarily, this section contains two parts: JOP and its Standard-Status; JOP and its Non-Standard Status. First of all, it talks about the relationship between JOP and Standard-Status. This chapter starts with the discussion of“can Non-Status person become Standard-Status JOP’. Under the premise of eclecticism, it continues with the arguments of“the affirmation of Non- Standard and Standard Status JOP”as well as“the affirmation of Diverse Status JOP”. After that, it persists with the discussion of“the affirmation of Non- Standard and Standard Status JOP”and“the sentencing of Non- Standard and Standard Status JOP”.Chapter Four: JOP and Recognition Mistake. This chapter clarifies that“Mistake of Law”and“Cognition Error of Facts”is different issue. As regard“Mistake of Law”, the misunderstanding of the conductor can not change the legal nature of the behavior itself. Thus recognition mistake is unable to affect the legal assessment of the conductor’s behavior. Meanwhile,“Cognition Error of Facts”of JOP can be categorized into tow parts: errors taken in the same constitution of a crime and errors taken in different constitutions of a crime. When the error is taken in the same constitution of a crime, the offenders should be sentenced as accomplishment of a crime premeditated according to the view of accordance in law. When the error is taken in different constitutions of a crime, the offenders should be considered as JOP according to the view of accordance in law. Regarding the Joint principal offender between the meaning contact inconsistent situation, should in the constitution important document superposition limit definitely the Joint principal offender’s intentionally establishment; The meaning contact is consistent regarding the Joint principal offender, but in implements the wrong question which the crime in the process appears, also should in the constitution important document superposition limit definitely the Joint principal offender’s intentionally establishment.Chapter Five: the Legislation of JOP in China. Until now, there is still lacking of explicit regulations of JOP in Chinese Criminal Law. This leads to major disputes concerning the issue of JOP in judicial practices. This thesis suggests that related regulations should be formulated from the perspectives of Criminal Pattern of JOP; JOP and Status; Recognition Mistake of JOP. This will also moderate Discretionary Power and asserts the principle of equality before the law.

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