★Not as a specific crime:

The abandonment of death andNot regard asThe difference between the crime of intentional homicide:The object of the crime of the crime of abandonment is not limited to family members

The subjective aspect: the abandonment crime is intentional crime, but the results (serious injury or death) must be negligent, and the difference between the crime of intentional homicide is the crime of intentional homicide is intentionally to the results.(subjective here do not use)

The objective aspect:If the right to life as the obligation of dependence is very strong, and the behavior of people also recognized this point, constant intentional homicide. Otherwise, set the crime of abandonment.(The right to life on the obligation of dependence)

An example1Zhang: three children with her to the mountains, the child died, the child died this presumption is Zhang San want to happen, presumed homicidal intentionally, set the crime of intentional homicide, if it is in many places, the presumption is not wish death results. This crime of abandonment.

An example2:Zhang San's wife is sick, three thought the wife died to another, and not to care, the Zhang's wife died, because the life of Zhang's wife Zhang San as the obligation dependence is not particularly strong, it can only be the crime of abandonment.

Don't act the state personnel violate the law or the occupation duty, general establishmentMalfeasance. But note that the crime of illegal detention, as long as the use of state functionaries duty then unlawful detention or deprivation of personal liberty of others, just beThe crime of illegal detention, special law is superior to general law.

③ as binding and not as: Crime of refusing to pay taxes (tax is the tax evasion behavior, or does not fulfill the obligation of tax payment behavior. In this sense, tax behavior including omission. But on the other hand, crime of refusing to pay taxes is not simply do not fulfill their obligations to pay taxes, also requires action "against" tax behavior. According to the criminal law, refused to pay taxes to violence, stress method, is refusing to pay taxes. The method is only as a refusal to pay taxes, it also includes the acts and omissions.)

As a coincidence and not asFor example, the driver of the car: a red light at the crossroads, still moving forward, resulting in pedestrian deaths. From the point of view is running as, from the point of view is not as brake. If we could be sure as a crime, need not examine whether it meets the conditions of omission crime.

 

Note: the crime of omission is intentional crime may be guilty of negligence, not as a crime may also constitute accomplice.

 

1,Results: the harm is harm behavior to the criminal law to protect the legal interests caused by the specific infringement facts

Objectivity, abstraction (effects of narrow result in conviction and sentencing)

 

5,On causality in criminal lawTo(necessary) conditionsBased on the theory of,

The basic formula of conditions is: without the former behavior is not the result, the former is the reason for the latter.

Should be consideredThe factors involved in theUnder the action of causality in criminal law, there is no sense of previously between behavior and harmful results. Conditions for the existence of relationship, with the principle of causality; but in fact behavior intervention or independent result occurs, the causal relationship between exception negative behavior and results.

Interventional factors include three kinds of cases:Natural events,The behavior of othersAs well asThe victim's behavior. The main consideration of the relationship between nature and with the advance behavior intervention factors, namely the factors involved in itself is the factors involved in the abnormal or normal, independent or subordinate to the advance behavior? If the intervention of the intervention factors is abnormal, itself independent from antecedent actions, the causal relationship between behavior and harmful results previously cut caused no causal relationship exists, the meaning of the criminal law on the other hand, is the advance behavior causal connection with the harmful results did not cut off the causality in criminal law sense and still exist.

 

★The determination conditions of relationship:(from Zhang Mingkai's "criminal law")

Usually easy to judge between the behavior and the results have no relation, is worthy to be discussed is the following situations:

(1) cut off causality

Cut off the causality relationship refers to the condition itself is cut off. The former condition on a result has not acted, post conditions unrelated causes the result. In this case, conditions are not the reasons. For example, a homicidal intentionally to B food put in a lethal poison, but in the poison has not acted, shot and killed a B C. Between the behavior and B a death, does not exist without the former it doesn't matter the latter conditions, so there is no causal relationship.

(2) the putative causal relationship

The putative causal relationship, is that although a behavior lead to result, but even without the behavior, the other will produce the same results. For example, the death penalty afternoon 1 when, in the execution is pull the trigger of the moment, the victim's father a push pull the trigger execution, he killed the death B. With the condition between whether to admit a behavior and results, in theory there is controversy. A positive answer people think that, as a matter of fact is a behavior caused b's death, the causal relationship between the two should be affirmed; as the criminal law evaluation object, conditions with and without by the fact judgment to determine the causal relationship, should be close to natural science concepts, factors and cannot additional assumption. A negative answer is that, in the circumstances, does not exist without the former it doesn't matter in the latter condition, in other words, even in the absence of a behavior will occur B death results, there is no causal relationship between a and B is death. This book basically agrees with that.

(3) the causal relationship between the double

The causal relationship between double, also known as an alternative joinder, refers to two or more behavior can cause the results, but in the behavior of people without meaning contact case, competing together led to the occurrence of. For example, a and B are not means to contact, are intended to kill C, and at the same time to C shot, and were hit by the heart. In this case, even in the absence of a behavior or not behavior of B, C will die. So, whether has the condition? Can apply conditional relation formula? The relationship between negative say that, there is no causal relationship between behavior and C A, B's death. Because there is no C behavior of a die, no C behavior B will die; if does not have the condition, cause and effect relationship does not exist. But, have died in the victim's case, deny the causal relationship and that acts only assume responsibility. It attempted. The relationship between the overall study conditions or that, should be on the conditional relation formula is modified, which leads to a result in a number of behavior, if the removal of a behavioral results will occur, the removal of all behavioral outcomes will not occur, all the behaviors are the results of. The book holding the latter view.

(4) the causal relationship between overlapping

More than two mutually independent behavior, occur alone cannot lead to results, but together the result, is the so-called overlapping causality. For example, a and B, two people without meaning contact, were put in a lethal dose of poison to C 50% of food, two people behavior overlap to lethal dose, C food after death. In this case, because there is no the former it doesn't matter in the latter condition, therefore, between affirmative action and C A, B two people death has a causal relationship.

★Other problems that should be paid attention to:

In the condition that take cognizance of causation should pay attention to the following points:

(1) as a condition of behavior must have dangerous consequences of the act, otherwise can't admit that there are conditions. Conditional relation formula of "results" is refers to the concrete, specific morphology, size and specific period of the specific results.

(2) the relationship is a kind of objective conditions, not to man's will. Whether the actor realize his behavior may result, whether the development process of causal relationship between reality and its development process and behavior of people expected, does not affect the conditions of existence. Conditions and objective relationship under certain conditions, it can not leave the objective conditions of causality; whether the actor to recognize the specific conditions, not about the causality.

(3) the results of behavior is occurring conditions can be identified conditions, is not the only condition is certain conditions. In other words, a result is completely possible, by several behavior therefore, in determining whether a certain behavior results reasons, can not easily deny other behavior is also the result of causes. Conversely, a behavior can be caused by a number of results, therefore, cause a result in the identification of certain acts, also do not deny the behavior also caused other results.

(4) in the development of causality, if in the third act, the victim's behavior or special natural fact, should lead to the possibility of intervention, happen to the size of the case, the abnormal size by examining the behavior, whether there is a causal relationship between judge behavior and results.Special attention should be paid to medical intervention factors, is special, because the medical behavior itself is risk behavior:

For example, in the same gross negligence in doctor caused the death of the victims, if previous actions lead only minor injuries to the victim, should break the causal relationship between the behavior and result that previously; if the previous behavior causes the victim dying seriously, should the causality between previously behavior and the victim's death. However, in the hours after the injury, others deliberately shot and killed the victim, then we should deny the causal relationship between the previous behavior and the victim's death. For example, if the A behavior has caused the B dying seriously, C later on the B implementation to beat, just cause B death period slightly ahead of time, should have a causal relationship between behavior and B certainly A's death. However, if the C shot and injured B, should the causality between the behavior and B A's death has been interrupted.

The case of abnormal or not, to determine whether the interrupt is significant. Behavior will inevitably lead to intervention, behavior intervention, usually lead to behavior rarely lead to intervention, behavior and intervention. These four kinds of circumstances, to determine the interrupt causal role in increasing order of.

(5) on the causal relationship is not as. The causal relationship between the omission and the harm result, has always been a controversial issue. In the theory of criminal law, the causality between people totally deny the omission and the harm result; the causal relationship between people totally sure not to harm as the result of.

The causal relationship between the others must not to harm as the result of. This book argues, the causal relationship between should certainly not to harm as the result of. First of all, from the relationship of rights and obligations on the subject of obligation, if not fulfilling the obligations, the subject of rights does not enjoy the rights, so that the law infringed. Not as it is because of the behavior has the specific obligations not fulfilled this obligation, the legal relationship is destroyed, cause harm to the specific. Secondly, from the condition that the content, as the crime of conditional relation formula is: if you do not have this behavior, the result will not occur, so the behavior is the reason; not as crime conditional relation formula is: if people act to fulfill their obligations, the result will not occur, it does not perform the obligation is the reason. The two have differences in form, but the causal relationship of the content is the same.

(6) causality of epidemiology. Public nuisance crime (including environmental crime) in the causal relationship is often difficult to identify. For example, a side effect of drugs, are often difficult to explain the scientific method. However, if the development of a causal relationship between the behavior and the result, because there is no known to science, the laws of nature completely open, denied on causality in criminal law, for the majority of public nuisance crime are not recognized. In order to solve this kind of unreasonable phenomenon, the criminal law theory presents epidemiological (epidemiology) theory of causality. Epidemiology is the reason and characteristics of pop group, incidence of diseases, as well as objects of prevention medicine branch. The reasons that have contribute to the causation in law. According to epidemiological theory, meet the following four conditions, we can certainly has a causal relationship between some factors and diseases: first, the factors in a certain period before the onset of action; second, the extent of the factor of the more obvious, the higher the prevalence; third, the factor distribution fluctuation and the epidemiological observation records of the popular features are not contradictory; fourth, the factor as a cause of action, and biology is not a contradiction. In a word, the relationship between some factors and disease, not to have scientific proof that even in medicine, pharmacology, but according to a large number of statistics, observation, can explain the factor with high probability to cause disease, may affirm its causal relationship. The epidemiology of the causality theory, that can be applied to public nuisance crime causation in the.

 

The determination results of aggregated consequential offense to the causal relationshipThe reason thatThe basic behavior, namely has aggravated consequence mustDirect. Such as: the rape of women, if the offender after lead women killed during the escape, should be identified as a direct.Exception:Trafficking in women and children, and the crime of organizing prostitution, forced prostitution sin "cause" victims or relatives of serious injury, death.

 

Relationship between causal and criminal responsibilityObjective: the causal relationship is the foundation of criminal responsibility, there is no causal relationship has no criminal liability, but a causal relationship is not necessarily a criminal responsibility, because the criminal responsibility is the unification of subjectivity and objectivity, so also consider the subjective factors, and have no responsibility and size is often with subjective change. - Qi Lin Ruan

 

(four) the subject of crime

The crime of natural person to master the three problems: the age of criminal responsibility, criminal responsibility, status crime.

1, the age of criminal responsibility

The age of criminal responsibility can make three points: no responsibility age (under 14 years of age), the relative age of responsibility (more than 14 years of age under 16 years of age), full responsibility age (16 years old).[2]

On the criminal responsibility of minors, especially should pay attention to the following questions:

The calculation principle for 1 year, should be in chronological age as the standard, from second days before the birthday for the full 14 years of age or 16 years of age;

The full 14 people under 16 years of age, should bear criminal responsibility; murder, intentional injury causing death, robbery, rape, arson, explosion, poisoning (throwing dangerous substance), drug trafficking.

The attention of robbery includes not only "the provisions of article 263rd of the criminal law"TypicalRobbery, also include other types of"Quasi robbery", such as the 267 paragraph secondCarrying weapons snatch convicted of robberyAnd in section 289The vandalism vandalism or rob property;

* Note: here no longer contains 269 robbery transformed robbery, ↓

"The Supreme People's Court on the trial of juvenile criminal case concrete application law interpretation of several issues"

　　Article tenth has over fourteen years of age under the age of sixteen theft, fraud, plunder the property of others, for booty, resist arrest or destroy criminal evidence on the spot the use of violence, intentional injury, causing serious injury or death, or intentional homicide, shall be respectively to the crime of intentional injury or intentional homicide conviction.

The full sixteen years of age under eighteen years of age who theft, fraud, robbery, for booty, resist arrest or destroy criminal evidence and on the spot the use of violence or threats of violence, shall be convicted and punished in accordance with the provisions of article 269th of the criminal law; if the circumstances are minor, but not convicted and punished for robbery.

Note: the transformed robbery is take money before, violence in robbery; direct violence in front, take money in the post

The attention of drug crimes, has over 14 years of age under the age of 16 only to bear criminal responsibility behavior of drug trafficking, the basic properties of the same damage equal smuggling, manufacturing, transport behavior of drug ("criminal law" article 347th) does not bear criminal responsibility. With this feature is extremely similar to the "some provisions of the criminal law" article 114th the with dangerous means to endanger public security crime, only the provisions on fire, explosion, poisoning bear criminal responsibility, but against water, endangering public security by other dangerous means behavior would not bear criminal responsibility.

The note is full already 14 people under 16 years of age only to legal several intentional criminal responsibility, but for any negligence crime is not bear criminal responsibility.

And for the full 14 under the age of 16 crimes, two principles should be followed the application of punishment:One should be given a lighter or mitigated punishment, two is not applicable (including the death penalty execution).

⑦Robbery guns, ammunition, explosives contained in the "robbery". Because the two is a crime of overlap of articles of law;

And for other serious intentional act, act in accordance with the provisions of the second paragraph of the 17 part, the behavior of the crimes punishment.

 

2The capacity of criminal responsibility

Criminal capacity requirements and have the ability to identify (understanding) and control (will), i.e.Criminal capacityThe capacity of criminal responsibility; have no effect and the degree of factors: age, mental disorders, loss of physiological function. Or the three law shall prevail to master: no responsibility, the limit responsibility ability, responsibility ability.

About the ability of criminal responsibility, should pay attention to: no responsibility and responsibility is not very important in the examination, the key point is to pay attention to the middle part, limit, -- relative responsibility status between complete responsibility and no responsibility, there are several types of personnel:

One is full already 14 people under 18 years of age crime,ShouldA lighter or mitigated punishment and death penalty;[3]

Two is a mental patient who has not completely lost the ability to recognize or control the crime,SureA lighter or mitigated punishment;

Three is a deaf mute or a blind person crime,SureA lighter, mitigated punishment or be exempted from punishment.

Identification and control ability, judgment:

(1) medical judgment: is there a psychosis;

(2) to determine whether Psychology: because of mental illness and not the ability of identification and control.

The drunken case behavior,SureBecome the subject of criminal law, criminal responsibility. (the drunken people are not intentional crime, may also be due to negligence and accident, at the same time, "drink" itself is a constitutive elements of traffic accident)

Pathological drunken behavior: pathological drunkenness belong to mental disease state, but in the case of intentionally causing criminal responsibility -- free behavior of (action libera in cause).

Complexity intoxicated, Chinese criminal law has no provisions, and pathological drunkenness is extremely rare.

 

3The status crime  And does not contain the crime of identity, such as the ringleader

The identity of the special subject of the so-called, is relatively general subject of crime, refers to complete with the general subject conditions, sin will be special status as a main body condition. Position or state criminal responsibility provisions of criminal law of special status that the personal aspects of specific qualifications. Typically such as the crime of corruption, crime of escape, such as the crime of torture to extract confessions.

 

The real status crime (affect conviction) and not the real status crime (influence the sentencing);

Positive identity crime (crime) and negative status crime (crime).

Criminal of natural identity (gender, age) and legal status crime (staff)

 

    "The Supreme People's Court on corruption, embezzlement case how to identify several common crime issues of interpretation"
    The first behavior and national staff collusion, by taking advantage of national staff, embezzle, steal, cheat or together with other means of illegal possession of public property in , embezzlement accomplice.
    Second behavior of people and companies or other units were in collusion, by taking advantage of company, enterprise or other unit personnel, the unit's property have been accounted for, the larger amount, the embezzlement accomplice.
    Third company, enterprise or other unit, does not have the status of national staff person collaboration with national staff, respectively, by taking advantage of their own, to the unit's property have been accounted for, in accordance with the nature of prime criminal conviction. -- you can not distinguish between master-slave committed to corruption to punish

 

National staff:

The state organIn publicPersonnel;
The State-Owned Company, enterprises, institutions, people's organizationsIn publicPersonnel;

The state organs, enterprises, institutions, State-Owned CompanyDelegateThe non State-Owned Company, enterprises, institutions, social organizationsIn publicPersonnel;

The other in accordance with the lawIn publicPersonnel, to state functionaries.

 

State personnelOfficial business.

The relationship to no specific interests of the majority;

② with discretion, judgment, decisive affairs;

③Mechanical, physical activity simply is not the official;

④Must be a state organ or other legal institutions or public organizations or arrangements affairs, public welfare activities citizens engaged in are not official.

 

"The court economic crime case seminar"Points out that, in public, is meant to represent the state organs, enterprises and institutions, State-Owned Company, and people's organizations to performThe organization, leadership, management, supervisionSuch duties. Business is mainly associated with the functions and powers of the public affairs and supervision, management of state-owned property duty activities.

"The court economic crime case seminar"Also established several special personnel identity:

(1) the directors of the State-Owned Company, managers, supervisors, accounting, cashier personnel management, supervision of state-owned property and other activities, to engage in public service.

(2) who do not have the authority to content services, technical services, such as assistant conductor etc., are engaged in the work, is generally not considered official.

(3) in the township (town) above China Communist Party organs, the people's Political Consultative Conference institutions engaged in public affairs, in judicial practice, it shall be deemed that the personnel of state organs.

(4) the provisions in the second paragraph of the criminal law ninety-third "engaged in official business in accordance with the law of the people" includes: the people's congresses at all levels to perform their duties according to law representative; ② to the judicial duties according to the law of the people's jury; to assist the people's Government of a township, subdistrict offices in the administration of the villagers' committees, residents' committees and other rural and city grass-roots organizations authorized by law; the other personnel engaged in official business.

 

"The staff explained" the NPC Standing Committee on the application of criminal law ninth chapter of crime of malfeasance state organs:Personnel engaged in the business of the exercise of state administrative authority in accordance with the provisions of laws, rules and regulations on the organization, or engage in business in the state organs entrusted on behalf of the state organs exercise their functions and powers of the people in the organization, or are not included in the national staffing agencies engaged in public affairs in state organs and personnel, in the exercise of functions and powers on behalf of the state organs, negligence, which constitutes a crime, criminal responsibility shall be investigated in accordance with the provisions of the criminal law on the crime of malfeasance.

 

Other identity: a specific occupation (doctors, postal personnel), specific legal obligations (the taxpayer, withholding agent), the specific legal status (witness, counsel, criminal litigation agent), specific diseases (STD), possess certain items (guns lawfully equipped), involved in some activities (production and sales of fake and inferior commodities), place of residence (Overseas), negative status (without obtaining the occupation qualification) etc..

 

---

 

 

[1] Among them, the elements are the causal relationship between behavior and harmful results belong to the objective aspect of the crime (elements), criminal law theory, there are still different views. Bachelor's degree materials generally think of a causal factors are not the objective aspect of the crime, the specific ways but between criminal behavior and harm result mutual connection, interaction, but because of its importance and complexity, it is necessary in the objective aspect of the crime as a special problem to be studied.

 

 

 

[2] Note: only in terms of age, the problem does not involve responsibility.

 

 

 

[3] Of course, here we must first solve the problem of criminal responsibility of behavior range 14 - 16 years, the age of criminal responsibility has been talked about, but here is to solve in the premise of criminal responsibility, the responsibility ability and reduced degree, standard.

 

(five) the subjective aspect of crime -- sin (evil)

The basic content of the subjective fault 

Analysis from two aspects of cognition factor and will factor. The combination of different content of the cognition factor and will factor, the formation of direct intent, indirect intention, overconfident negligence, negligence of four forms of.

 

Cognition factor and will factor have different combinations, specifically available below said:

Understanding factors         Having     The will factor    Exergy    Fault form 

 

Understanding the behavior andResults the inevitableWill occur          Hope             Direct intention

                                     Laissez-faire             Indirect intent

Understanding the behavior and resultsProbablyWill occur           

                         Credulous  Want to avoid          Overconfident negligence

Have failed to recognize the behavior and the result (the effect)     Don't want          Careless negligence

U     This result meansHarm to societyResult

U     This must meanSubjective thoughtThe inevitable

Understanding the factors include: ActFactCognition and behaviorHarmfulnessUnderstanding the two aspects --- Ruan Qilinyu

 

Attached: reasonable trust, supervisory negligence (regulatory negligence)

Note: the tolerance rules: scientific experiment and high-speed transport accidents in general, fault or accident,Mainly to see whether they comply with the rules(the new negligence theory) was an accident -- to abide by the rules, not abide by the rules is negligence criminal intention is very clear, only time can be set up on purpose

 

The difference between each other:

The key points of the subjective aspect of crime control lies in the distinction between each other and with several fault accident etc.

1, the distinction between direct and indirect intentional:

The understanding of the content and extent of different factors;

The results will on different attitudes; to note: for indirect intentional "laissez faire", must be the harm results may occur, if the behavior of people realize the harm result is inevitable, there is no "laissez faire" directly identified as "hope".

The particular hazards occur and not on the qualitative behavior treatment. → Germany punish indirect intentional attempt, Chinese on indirect intention not to blow attempted (similar and criminal negligence)

2The difference between indirect intention, and overconfident negligence:

① the understanding factor levels in some different;

The most crucial is different: there is no denying the will factor, opposition and with certain conditions to avoid or measures of results. The indirect intentional showed defiance against the interests of law behavior; and overconfident negligence is conduct in theSubjectiveTo avoid harm results occur,ObjectivelyTake measures to avoid or confidence is not occurring basis.

3The difference, overconfident negligence and negligence: understanding the differences of results -- with or without understanding.

4, the difference between negligence and accidentsThe key point is: whether the actor should foresee the occurrence of harmful results, namely the behavior person know with attention obligation, have the ability to pay attention, the standard of judgment is based on ordinary people, both the behavior of human occupation, work environment, special occasions and other special factors.

5, don't need to know the content:"Objective exceeding factors": the crime of losing firearms without report (severe consequences for cause).

Objective to makeThe purpose of the crime:"Over subjective factor". The criminal purpose can affect conviction, but does not affect the violation or attempted. (The motive for the crimeIf the circumstances are serious, the serious influence, for conviction crime, but the main impact of sentencing -- Note: the plot is not necessarily the objective aspect, also has the possibility is the combination of subjective or body, or several aspects)

The purpose offense, namely the criminal law to a specific purpose as the necessary element of the crime constitution of crimeIf does not have the goal, does not constitute a crime or does not constitute the crime.The following important induction:

(1). Crime of smuggling pornographic articles (for profit, communication for the purpose) (152nd);

(2). Crime of relending at high interest rate (in lending for the purpose of profit) (175th);

(3). The crime of copyright infringement (for-profit) (217th);

(4). (the kidnapping extortion or other illegal requests for the purpose) (239th);

(5). Crime of false accusation (intent to make the person subject to criminal investigation) (243rd);

(6). Crime of fraud and other crimes, theft, robbery, snatch (for the purpose of illegal possession);

(7). The crime of gambling (for-profit) (303rd);

(8). The crime of swindling exit paper (for the organization of other persons for the purpose of the border) (319);

(9). Manufacturing, copying, publishing, selling, profit-making crime of spreading obscene articles (363rd);

(10). The crime of bribery (for the purpose of gaining illegitimate interests) (389th)

 

Determination of intentional and negligent (excerpt from Zhang Mingkai's "criminal law")

 (a) the correct understanding of the connotation of criminal intent

1 should be intentional crime and general life meaning of "intentional" phase difference. The intentional crime with special contents, specific performance of the harmful acts and their own implementation of the understanding and hope or laissez faire attitude. Life in general sense of "intention" is that the behavior people consciously implemented certain behavior, but not with the content of the criminal intention. For example, people in the darkness of theft behavior, in order to identify theft object surface strike a match, resulting in a fire. In the general sense, match the behavior is clearly "deliberate"; but the actor in the match and did not realize that the fire may happen, or have already foreseen but believe can avoid, not hope or indulge harm results occur, so it is not a criminal law on the crime of intentional. Moreover, people face the ongoing illegal violations implementation of justifiable defense, in the general sense is "deliberately", but it is not the criminal law on the crime of intentional. Therefore, the judicial personnel cannot consciously or unconsciously to the general sense of the criminal law on the crime of intentional identified as deliberately.

2 should be intentional crime and objective or pure phase difference. The error of cognition factor and will factor of unity, therefore, neither will factors instead of intentionally, also cannot use cognitive factors instead of intentionally. "With the...... Objective "instead of intentionally, or that" recognize that violates the rules and regulations is deliberately ", are not appropriate. The former will narrow the scope of the latter will expand intentionally, deliberately range. Because indirect intention not to pursue the purpose of crime, objective instead of intentionally may be indirect intentionally excluded deliberately; recognize the acts in violation of rules and regulations, does not indicate that the behavior people must recognize the harm results occur, but does not show that people hope or indulge harm results occur, so "recognize that violates the rules and regulations is deliberately" point of view, will be negligent psychology into intentional. Therefore, the judicial personnel must remember intentionally is the organic unity of cognition factor and will factor.

Based on the above reasons, the concept of the so-called "double crime" should be taken seriously. As they say, in the traffic accident crime, behavior person although death results due to human negligence, but the behavior of breaching the traffic regulations may be deliberately; they formed the intentional, negligence of the results to a so-called double sin of behavior. In fact, the simple understanding of the behavior of breaching the traffic regulations, not equal to deliberate on the criminal law. Because only recognize their own behavior in violation of the traffic regulations and may happen traffic accident results, does not indicate that the behavior person wishes or allows the harmful consequences, thus deliberately cognition factor and will factor and not unified, so it was not intentionally in the criminal law (just overconfident negligence of a factor).

(two) the correct understanding of the general provisions of "knowing" and specific provisions of "knowing" relationship

The general provisions of criminal law provisions of deliberate crime understanding factors is "knowing" his act will entail harmful consequences to society "; the specific content that" certain provisions of crime criminal law. These two kinds of "knowing" both connections and differences. The general rules of the criminal law on the "knowledge" is the intent of the general components, the specific provisions of the criminal law on the "knowledge" is a deliberate specific factors; only in the specific provisions of "knowing", in order to produce general "knowingly"; but in the specific provisions of "knowing" is not equal to the general provisions of "knowing", only general provisions in the premise of "knowing". [51] example, the booty crime criminal law 312nd stipulation, with actor is the proceeds of crime booty for the establishment of conditions. The person who knowingly is stolen, then knowing that their actions harm nature and harm result; if not known to be stolen goods, hazardous nature and harm result could not knowing their own behavior; if the actor might be stolen goods, means harm result behavior person knowing that their actions may be harboring stolen property, acquisition of stolen goods, transfer of stolen goods or to sell stolen goods behavior, their behavior may cause obstruction of justice activities, if the behavior of the indulgence of the results occurred, then established the indirect intentional. Therefore, when the specific provisions to "knowingly" requirement, do not exclude the possibility of indirect intention. However, that is a realistic understanding, rather than the underlying knowledge, knowing that refers to the behavior of people already know some facts exist or may exist (such as knowingly harboring stolen goods stolen goods is or may be), not including should know some facts (not including should know is stolen goods), or they confused the intention and negligence.

There is a need to explain, specific provisions on "knowing" provisions, mostly belonging to the notice provisions, provisions that judicial staff attention. Even if we did not "knowingly" requirement, it should be based on the general provisions of intentionally stipulation, must know clearly that determine. For example, the criminal law 171st stipulation: "sell, buy counterfeit money or use forged currency and transportation, the larger amount, is less than three years imprisonment or criminal detention, a fine of twenty thousand yuan and two hundred thousand yuan fine;......" On the surface, the transport of counterfeit money, need to "knowingly false money"; to sell, buy counterfeit, you do not need to use forged currency. But the fact is not the case. In this crime, behavior object is specific, which belongs to the objective elements, the behavior must be aware of this; if not knowing is the counterfeit currency and sell or buy, will not harm result knowing that one's actions will cause the destruction of financial management order, will not be stored in the intentional crime. Article 171st of the criminal law is so, because of not knowing when in transportation is counterfeit money, the possibility of a larger, therefore, to remind the judicial staff attention, especially that "knowing is counterfeit transportation", sell, buy counterfeit money, the general performance of the small amount of money for a lot of really false, or will be a large number of counterfeit money in exchange for a small amount of money that people really, behavior usually is counterfeit money, so there is no need to remind. Even so, the judicial staff to find out the behavior still in the sale, purchase of counterfeit currency, whether knowingly forged currency. For example, not foreign people based on the need to purchase a large number of false currency, but did not buy counterfeit money, can not be identified as the purchase of counterfeit currency crimes. So, although article 171st of the criminal law is not required to sell, buy counterfeit money must "use forged currency", but according to the provisions of the general provisions of the criminal law on purpose, still need the person who knowingly forged currencies. For the same reason, even though the specific provisions on booty crime does not provide "knowing is the proceeds of crime booty", but according to the general provisions of the provisions of the crime intentionally, because cannot be constituted by negligence, also requires the actor is the proceeds of crime. Accordingly, even if the criminal law about the carnal knowledge of a child or young statutory provisions did not specify "knowing is the young girl", but because the young girl is the crime object specific, belongs to the objective elements, the behavior must knowing is the young girl, otherwise don't set up a crime.

(three) to distinguish crime intention transformation and limits on intention to commit a crime

Criminal intention transformation will lead to the behavior way, nature change, that thus affecting the intentional content.

Make the first case conversion is behavior person to criminal intent, the implementation of crime in preparation, but in their implementation of the crime of criminal intent. Or say, human behavior at the preparatory stage is the intention to commit a crime, but in the implementation stage is that the criminal intent. For example, the actor has robbed intentionally in the run-up to the manufacturing conditions, tools, robbery; but to enter the scene, found that all the people, property custodian is not present, then the implementation of theft. Behavior of the offender, the preparatory stage robbery deliberately into stealing intentionally, its behavior is theft. Generally, in this case, should be based on the absorption of actions preparation behavior. In fact it is difficult to lump together, may according to the behavior absorbs the light behavior principle of crime: if theft is serious, the larceny, the robbery preparatory acts as theft crime shall be given a heavier punishment plot; if theft is not serious, and severe looting preparatory behavior, the robbery crime, (PREP) the act of theft, robbery as a heavier punishment plot.

Make second case conversion is, change in the process of implementation of criminal intent crime, leads to the transformation of this crime and other crimes. For example, in a deliberately hurting others in the process, change the criminal intention, intent to kill the others. In another example, a B see others hand bag with cash, up rob thought, in the scramble process into the use of violence, the others down, grabbed the bag from. Moreover, a C to kill others, killing process, due to some reason to change the criminal intent, that damage can be, no deaths. In this regard, the criminal law theory has argued: Criminal Intent elevated, from the new (after the change of meaning); criminal intent reduction, from Old Italian (before the change of meaning). In other words, if people act intended to make lighter crimes, then change the criminal intention, criminal crime will be heavy, heavy crime; if the criminal act to heavier crime, after the change of criminal intent, make lighter crimes, is still heavier crime. In this view, the A, B behavior should be set respectively intentional homicide and robbery; the C's behavior should be identified as a crime of intentional homicide, but the existence of discontinuation of a crime problem, i.e. if the discontinuation of a crime is established, the crime of intentional homicide of discontinuance of a crime. This book is in favor of this view.

Criminal intention transformation is different from another criminal intent, the former is the crime into other crimes, it is still a crime; the latter is in the former crime has been accomplished, attempted or termination, behavior and another intention to commit another crime, thus established the number crime. In particular, criminal intention transformation has two important differences and another criminal intention: (1) behavior in the continuing process, only make the problem; if for some reason the end, is only the start of criminal intent. For example, after a rape intentional violence against B, because women in menstrual period instead of adultery, then another intention to commit a crime of robbery. The robbery, intentional and looting is produced in the rape following suspension, so a behavior constitute rape and robbery crime termination two. (2) the same victims have committed problem; if for a different object, it can only be on the criminal intent. For example, some armour to injure intentionally sword B, suitable foe a C appeared on the scene, a switch to a third kill. A behavior should be established according to different objects, mayhem and murder two crimes.

(four) based on the basic principle of the new negligence theory

In our criminal law theory, although not yet fully accept the new negligence theory, but the new negligence theory for the emergence and development of some basic principle, principle, the judicial authority has the significance of criminal negligence. In other words, we in the cognizance of criminal negligence, shall still apply these principles, the principle of.

1 reasonable trust principle. The principle of trust, will take the appropriate behavior in reasonable reliance of the victim or third, if the victim or third persons to take inappropriate behavior and damage behavior results, this result does not bear criminal responsibility. For example, the driver of the car was driving a car in a closed the highway, due to reasonable trust others not across the road and normal running, if others illegally crossing the road was run over by cars, the criminal responsibility of the driver of the car will not bear the criminal negligence. Visible, reasonable reliance is not believe can avoid, in other words, with the application of the principles of trust conditions, shall not be regarded as negligent crime. The application of trust principle is: people trust others to implement appropriate actions, and this kind of trust has the rationality; there are specific of the trust others to take the appropriate actions or conditions, and their behavior is not illegal.

The legal risk of 2 allowed. That the law allowed dangers, as the complexity of social life, dangerous behavior increased. Many dangerous behavior is not only inevitable, but also has the necessity and usefulness for social development; the implementation of the risk behaviors, if necessary to comply with the rules of conduct, to seriously implement its behavior, even if the prior foresaw the danger, later made into law results, also cannot be the perpetrator of criminal responsibility of negligence crime. For example, in the nuclear tests are foreseen the consequences of failure may be caused by the test. But as long as they follow the rules of scientific experiment, engaged in nuclear testing in a cautious attitude, even if the test failed to bring the loss, also not be identified as overconfident negligence. Moreover, engaged in drug development personnel, as long as they follow the rules of drug development, for example, by not only chemical test proved that the drug does not cause harm to people, and through animal experiments, clinical experiments prove that the new drugs will not cause harm to people, and to treat disease effectively, even if the new drugs and cause harm to people, side effects are also not to conduct should be foreseen or have already foreseen drug, and held accountable for their criminal negligence liability. Therefore, those who follow the rules of conduct, it shall not be deemed as believe can avoid.

Legal risk distribution 3. Legal risk allocation is concerned, in the determination of criminal negligence, the perpetrators and victims should be put forward what the duty of the problem. For example, a disregard for traffic signal pedestrians crossing the road, the driver of the car B should reduce speed and did not slow down, causing a death. B this is a fault and the fault is the result of competition. In this case, shall determine the behavior of human negligence according to legal risk allocation has no and the degree of responsibility. Obviously, if the perpetrators of the wide range of duty, duty of care is narrow and the victim, if the scope of duty of care; to the perpetrators of the narrow scope of the duty of care, the wide. Therefore, must according to the needs of society, the order of life, work standards, appropriate allocation of risk. For example, there are special rail train, the attention of drivers on pedestrian compulsory little or no attention obligation, burden of a very wide range of pedestrian danger. If people stay on track to be run over by a train, the train driver does not assume liability for negligence. On the contrary, in mixed vehicle on the road, the driver of the car with the most dangerous burden, if the car pedestrian death caused by negligence crime, constitutes a great possibility.

(five) negligence to intentional transformation

Determination of criminal negligence, should also pay attention to the fault into deliberately situation. The behavior of human negligence (not yet constitute a criminal negligence) cause danger to a legal interest, but did not eliminate the risk, hope or indulge harm results occur. For example, people inadvertently cigarette butts in the warehouse, has the risk of fire, people can eliminate risk, but want to cause fire against the storekeeper, deliberately not to eliminate risk, leading to a fire. This transformation from ordinary negligence crime intentionally, should be identified as arson and not fire sin. This is the general negligence led to the actor has to prevent the happen obligations, and the behavior of people deliberately do not prevent the result of crime is already formed spider. But it should be noted that, if the negligence previously has caused legal harm result, negligent crime, not pa Husheng prevent happen obligations, only identified as negligent crime.

Need is the study of human behavior, negligence caused some harm results, could prevent more serious results, but the line of force does not prevent that serious results, whether by fault into intentional? Such as car driver negligence violate traffic regulations will be three people seriously injured, get off to examine the situation, the can the three people sent to hospital, but the thought of the victim's death also does not matter, then immediately run away, three of the victims died later. The defendant's conduct was only set up a traffic accident crime, or set up a crime of intentional homicide, or the establishment of several crimes? Negligence the defendant caused three people injured, itself will be able to set up the crime of causing traffic casualties. The thought of death to the victim nor the escape behavior, which lead to result after getting off, whether to set up the indirect intentional omission? If the three victims are dying seriously, even if the defendant aid is also inevitable death, only to lose the establishment of crime. In other words, if aid is also cannot prevent the death of the results, can be caused by negligence death results evaluation for the previous results, but not on the other as the indirect intentional crime of omission. But, if the accused will be three of the victims to the hospital, you can save the life, then there exists whether indirect omission crime. However, this and how to understand the essence of crime directly, not as a crime of intentional homicide, need further discussion.

 

Attached: negligence summary:

   The criminal law to punish the crime as the principle, to punish negligence crime is an exception. A negligent crime mainly focus on to cause significant harm results field (limited to outline range);

  1, endangering public security criminal negligence:

 Error method:

   (1) fire sin (2) crime of negligently breaching dikes (3) crime of negligently causing explosions (4) negligence crime of throwing dangerous substance (5) fault in the crime of endangering public safety

 Object representing the legal interests:

  (1) negligence damaged transport sins (2) negligence crime of sabotaging transportation facilities (3) negligence damaged electrical equipment (4) the crime of negligence damaged inflammable or explosive equipment crime (5) negligence damaged radio and television, public telecommunications facilities crime

 Major safety occupation of negligence:

   (1) major accident crime (2) railway operational accident crime of traffic accident crime (3) (4) major responsibility things put sin (5) major labor safety accident crime in the crime of dangerous goods (6) (7) engineering major safety accident crime (8) educationThe serious safety accident crime (9) fire liability accident crime

  2, undermining the order of socialist market economy:

   (1) the performance of the contract signed, the crime of dereliction and being deceived (2) crime of dereliction of duty and institutions, enterprises, State-Owned Company (3) major issue false documents crimes

  3, encroaches upon the citizen personal rights:

   (1) the crime of negligence causing death (2) negligence mayhem

  4, disturbing social order:

  (I) crime of negligently destroying cultural relics (2)Crime of impairing infectious disease prevention(330A, toThe dangerAs a criminal standardNegligenceCrime) (2) infectious bacteria, virus spread crime (4) sin (obstruction of the frontier health and quarantine332A, toThe dangerAs a criminal standardNegligenceCrime) (5) acquisition, blood supply, production, supply of blood products accident crime in the crime of medical accident (6) (7) the crime of major environmental pollution accident

  5, malfeasance:

  Be forgetful of one's duties crime (1) (2) negligently divulges State Secrets (3) national office working personnel to perform the contract signed, the crime of dereliction and being deceived (4) execution of a judgment, ruling the dereliction of duty dereliction of duty (5) resulting in detainees to escape (6) environmental supervision and dereliction of duty crime prevention and treatment of infectious diseases (7) loss of duty crime

  6Breach of military duty:

   (1), with French military duty crime (2) negligently divulges military secrets (3) weaponry crime

  7, consistent:

   (1) signed contract crime of dereliction of duty, cheated, and institutions -- State-Owned Company, enterprise personnel dereliction of duty crime organs -- countries signed the contract being cheated, dereliction of duty

   (2) be forgetful of one's duties crime -- enforcement of judgment, ruling the dereliction of duty dereliction of duty -- the prisoners escape -- environmental supervision and dereliction of Duty Crime -- infectious disease preventing dereliction of Duty Crime -- negligently divulges State secrets -- negligently divulges military secrets

   (3) the crime of major environmental pollution accident -- environmental supervision and dereliction of duty

   (4) infectious bacteria, virus infectious disease prevention dereliction of Duty Crime -- diffusion

 

Six.The wrong understanding:

Including the mistake of law and fact error:

Mistake of law:

1If the guilty act mistakenly believe that the behavior of a lack of awareness of innocence (social harm in their behavior, not only the establishment of intentional crime, negligent crime;

②The innocent act mistakenly believe that the guilty behavior (illusion made;

③Mistake crime qualitative and punishment, generally do not affect the qualitative sentencing.

 

Cognition errors of factsIncluding theThe error of the object, behaviorObject error(the elements of object error, non elements of object error),The error means or toolAs well asCausality errors. For the first three, basically follow a clue to deal with: the subjective whether criminal intent, if any, or crime accomplished or attempted crime; if no crime is intentional, or negligent crime or accident; and the causal relationship between the error of cognition, does not affect the qualitative sentencing.

1Specifically, the fact cognitional errorError: the perpetrator's subjective and objective behavior did not exceed the same crime

   The object (the object without error) error:The act of people mistook a object as B objects to be infringed, and a and B shows the same object object of legal interest, the actor's understanding content and objective fact still belong to the same crime situation. For example, the behavior of people to kill a, B as a night mistakenly killed. According to the statutory compliance with said, the provisions of the criminal law of the crime of intentional homicide is to protect human life, not just to protect specific armor or specific B life, therefore, as long as the subjective want to kill people kill, and objectively, then meet the manslaughter elements, the establishment of the crime of intentional homicide crime.

   The blow (object) error:Also known as the method of error, against bias, due to error behavior itself, leading to the object behavior person to attack and the actual victims are not consistent, but this inconsistency is not beyond the same crime. According to the statutory compliance with said, an actor has a murderer intentionally homicidal behavior, objectively also causing death, crime of intentional homicide crime stipulated in the criminal law of two which is completely consistent, so the establishment of intentional homicide crime. Note, that is to say, there is a problem: to kill a person, but because the act of error, which leads to the death of a and B, how should handle? That is to say, the number of deliberately said that, behavior B founded intentional homicide of a book in favor and accomplished; the number of intentional. But to take a number of deliberately said does not mean to establish a number of intentional homicide, because only one behavior, it should be according to the imaginative joinder of offenses in a crime.

For example: three want to kill Li Si, to Li Si shot, shot through the body of Li Si killed at Lee four behind the king five, Li four injured not dead.For the king of five deaths, according to the "that is to say," direct legal presumption is a threeIndirect intent.Unlike"Specific meet said"Considered as subjective negligence.

   The causality errors:Refers to the violation object without error, but the cause of the development of causality violation behavior and expected the inconsistent results, and against the push back or early occurrence. The causal relationship between the error mainly have three kinds of cases: the causal relationship between narrow error, antecedent intent (German scholar Weber general intent) achieved ahead of schedule and the constitution of crime.

     The causal relationship between narrow error, is refers to the result not process according to behavior of human development on the causal relationship between the predicted to realize the situation. For example, a murderer intentionally use a knife to kill the wounded B, B, but B for patients with hemophilia, died of excessive bleeding. Moreover, in order to make B a drowning will b into the wells, but well without water, ethylene killed in the well. Also, a homicidal intentionally shot to B, B to avoid the bullet hit his back, the results fall off a cliff and die.(causality errorsDoes not affect the qualitative sentencing, does not affect the establishment of intentional crime accomplishment)

     Ex ante deliberately, refers to the behavior of people mistakenly believe that the first behavior has caused the results for other purposes, the implementation of second behavior, is actually second behavior that leads to the expected results of the. For example, a homicidal intentionally to B (the first act of violence), caused b after shock, a thought that B has died, in order to conceal Zuiji, ethylene throw to the water (second), in fact B is drowned in the water(Ex ante causality deliberately did not interrupt, the intentional crime accomplished crime)

     The early realization of the crime, in fact refers to the early realization of the behavior expected results. For example, a ready make B eat sleeping pills sleep be hanged, but not to be a implementation of strangulation behavior, B due to an overdose of sleeping pills and died. Moreover, a to B valuables moved to the wall destroyed, but picked up the valuables, valuables slipped from his hand and broke. To determine whether this behavior was accomplished crime, the key lies in the actors in the implementation of the first act, whether it has started to implement, if certain conclusion, should be regarded as the accomplished crime, if the negative conclusion, denied the accomplished crime.

2Abstract the fact errorError: the perpetrator's subjective and objective behavior beyond the same crime

   The object error (object error), South Korea Friendship directly called "object error":The act of people mistook a object as B objects to be infringed, and a object and B object reflect different interests, different constitution of a crime. For example, people to theft of general property, but mistook the gun as a general property theft. This error is beyond the scope of the crime. Behavior known facts (theft) and reality (the theft of firearms) belong to different constitution of a crime.

   The blow (object) error:The error behavior itself, leading to the object behavior person to attack and the actual victims are not consistent, and this inconsistency exceeded the same crime. For example, behavior person to shoot B, but without aim, and the B side value of nearly million pet killed. Similarly, people know the facts (murder) and reality (destruction of property) belong to different constitution of a crime.

Abstract the fact judgment standard error: that is to say, think, between different crime mistake principle negates the intention of the establishment or just established attempted intentional crime. For example, people to kill pets but actually causing death. According to the statutory compliance with said, although the actors deliberately destroy property, but the death is at best a fault; if the crime of intentional destruction of property not punish the attempted, so, only the establishment of the crime of negligence causing death. On the contrary, people to kill but actually hit the other side pet. The actor has intention and behavior of murder, behavior also has the risk of death, but objectively without causing death; but the fault damage to property does not have the punishment, so the establishment of attempted murder. That is to say that, even if the crime is different, but if the crime is homogeneous, then, in coincidence limits, establishment of misdemeanor intent accomplished offense.

Book in favor of statutory compliance with said, advocated the unity of the subjective and the objective scope of crime. In particular, not only according to the intentional content behavior or only according to the objective fact behavior of crime, and should be in the range of intentional content and objective behavior in the crime of unity. In the case of attempted felony without punishment, if a felony and misdemeanor homogeneous, built a misdemeanor in coincidence within the limits of the accomplished offense. For example, for theft of intentional actually stealing the guns, the perpetrator objective in spite of the theft of firearms, deliberately but no stealing guns on the subjective, the objective behavior and the subjective intention is not unified, so it cannot be considered as the theft of firearms; intentional behavior person has the larceny theft, also behavior, gun also has the property value, which can be evaluated for the property, then, in the range of the crime of theft is the unity of subjective and objective, it should be regarded as crime of theft. Moreover, the perpetrator will occupy others' property mistakenly believed to be forgotten and according to the existing. Although the actors in the implementation of the objective is the act of theft, but the subjective only with intentional misappropriation, so in the range of larceny, subjective and objective and not unified; only identified as the crime of embezzlement, is consistent with the principle of unity of subjective and objective. In view of this, in terms of abstract mistake of fact (in the case of attempted felony without penalty), should first of all from the objective fact misdemeanor subjective or misdemeanor starting, and then judge whether the corresponding objective facts or subjective understanding, so as to draw a correct conclusion. If the subjective cognition is a misdemeanor and felony, the fact is, from the subjective understanding, to determine whether the objective facts, the corresponding if, is identified as a misdemeanor accomplished offense; if the fact is a misdemeanor and felony, subjective understanding is, from the objective facts, not subjective judgment of fact the corresponding; if any, are identified as crime accomplished offense. However, if guilty of felony offense, attempted offense and felony misdemeanor heavy on the accomplished crime, shall be punished for a felony offense. For example, a deliberately to B shot, but because there is no aim in C minor injuries. In this regard, shall be deemed to be attempted murder, and could not be regarded as intentional injury crime.

 

Attached: embezzlement and theftMistake:2003Exam and2004Years88Questions

    2003Years: a game hall at 8 in the morning, just open the door, entered the game room to play a, found a mobile phone No. 6 game machine, a right into their pockets, and then fled. After the identification, the mobile phone is the game hall boss while cleaning the room, he put on the game machine. A captured said they always think the mobile phone is the other customers lost property. Even if the original possessor lost possession, but when the transfer of building property managers or third accounts sometimes, should also be considered to occupy others' property. In this case even if the mobile phone is really the other customer forgotten property, but the mobile phone of possession should also belong to the game hall boss, a take away our possession should be no mobile phone theft. In this case, always think the mobile phone is the other customers lost property, but did not say a think it out of the possession and control of all others, especially the control of the game hall boss. In other words, it is a still can recognize the mobile phone to the game hall boss holds, so a violation of the game hall boss of possession, but was deliberately under violations of boss of mobile phone of possession, therefore constitute the crime of theft.

    2004Years: a coach, mistakenly think that the driver seat bag for side B all (as drivers of all; b) after a stopover, a mistake B forgot to take the bag. In order to illegally occupy the handbag property (a driver for others to purchase 13 of the mobile phone, the value of 26000 yuan), a get out ahead of time. Well will bag. The driver after arrival found her bag was missing, then. The researchers found a significant earn doubt, asked a nail, but refused to admit, do not hand bag.

    Analytical:If in a certain occasion, behavior person reasonable that mobile phone has been out of anyone's control, the general idea of society agrees that the judge the case, taking the behavior of property is the behavior of embezzlement behavior, even if the control property is in fact under sb. Such as a paint on glass will not be careful when the wallet to the downstairs office, his pa in the window watching their wallets, in case anyone. B after see four unmanned, then picked up the wallet is gone, a deaf mute because is unable to express, just watched his wallet was taken. Here B thought the wallet is forgotten things (from all other control matter) occupation. Only the establishment of subjective and objective consistent with the scope of the crime of embezzlement. Although objectively violation of a right of possession, but not the intentional category, and therefore can not be set up the crime of theft. Long-distance car, bus, train, large cruise, large vehicles belonging to the public space in the period of public service, lost these transport goods is not directly to the driver or conductor occupies, is still who first made. Whoever plays. A reasonable thought it was out of anyone's control, but the general idea of society also agree with this judgment, it is a behavior of property expropriation behavior, even after controlling for the fact in the driver under the bag.

 

(seven) the comprehensive elements of a crime

"Serious": it is suggested that the rules, not elements. Not on the specific content of a certain aspect, it means that any one aspect of a serious, its behavior is a crime.

 

Four,     Proper behavior -- seemingly crime is proper behavior

 Essential proper behavior is the interest measure based on interest (said, lack of interest and lack of principle and advantages of interest).

(a) the justifiable defense → mainly for violent street crime

1, the condition of justifiable defense

(1) the causes of the condition:The unlawful infringement of reality (generally also require aggressive, urgency, trespass, but there are some exceptions);

Question: ① yell away against the people (not in self-defense, because shouted impossible to infringement damages)

② on defense (not justifiable defense), note: the crime instigated the animal defense not to defense

③ the negligence of Defense (can defend)

The omission of the defence (general can not, but if it is urgent to justifiable defense)

The bidding behavior of self defense (cause have obligation of tolerance)

And for the very young and the mental patient defense condition (can be defensive, but must have no alternative against one's will)

-- the imaginary defense subjective negligence or accident, but excessive imaginary defense can be intentional crime;

(2) the time condition:The urgency of the law against the. → or an untimely defense (defense, advance the afterwards defense)

In the property crime cases (status crime, such as robbery, robbery, theft, extortion), behavior has been accomplished, but wasOn the spotFoundAndAt the same time being huntedThe,ContinuedThe unlawful infringement people will the property to hide to a safe place, pursuer justifiable defence can be used.

Example.Zhang San stole a piece of article on the back in Li Si Jia, three out of the Li Si Jia, to the station to wait for the car is 100 meters from the Li Sijia bus, just as Li Sizuo the bus home from work, in the station found Li Sibei thing is it from his home to steal, hence two people tussle. - - in this case, Zhang San found Li Sitou place is the bus station, which belongs to the public space, so it does not belong to the spot, so Zhang San's behavior is not self-defense self-defense, but not on the spot, but also because of theft, so Li Si cannot be converted into a robbery.

(3) the object condition: the infringement person (the accomplice without the implementation of illegal violate not justifiable defence)

Of the third, otherwise a defense

(4) the subjective conditions: legitimacy rejection provocation defense, fighting each other, occasional defense. And there must be the intention of Defense

(5) limit conditions: no obviously exceeds the limits of necessity and major damage

2, excessive defense and its criminal responsibility: fault form: negligence, intentional (general).

Note: "excessive defense" itself is not an independent charge, clear how to "self-defense" qualitative and qualitative punishment, should according to the behavior of people obviously exceeds the limits of necessity and caused major damage to the subjective and objective outcomes, invoking the provisions of criminal law related, such as the crime of intentional injury, caused by negligence death crime etc.,

When is the punishment principle of self-defense"ShouldReduced or exempted from punishment."

3, special justifiable defense right: only when theViolent crime of seriousWhen the provisions, for special justifiable defense.

 

(two) emergency  To criminal law in cancer - Korean friendship

1, the emergency conditions

(1) the causes of the condition:The real danger.

Danger himself how to deal with quite said. Gross negligence or intentional behavior caused by, people have to bear obligations; slight negligence caused to risk his life, should allow the emergency.

(2) the time conditions: risk has occurred is not over yet (and have no alternative against one's will)

(3) the object condition: Third People's legitimate rights and interests; (or illegal violate their rights - Han Youyi)

(4) the subjective conditions: must have hedge intentions

(5) limit conditions: no exceeds the limits of necessity and causes undue damage.

2, excessive necessity and its criminal responsibility:ShouldReduce or exempt

Twenty-firstArticle thirdProvisions for emergency system exception to the application, is for the person who is charged with specific responsibility duty, business such as firefighters and other purposes, provided that when the "avoid danger to oneself".

3, the justifiable defense and emergency hedge difference

Possible to constitute the necessity defense

 

(three) the other causes of crime

Act:

The legal action and remove criminal policy based reasons: such as the issuance of lottery.

The intent of the law expressly the legality conditions, namely a kind of behavior would have to have a criminal, but the special regulations of the laws, meet certain conditions is legal;

The authority (duty) act: to arrest suspects, execution;

The right (Compulsory) behavior: citizens over.

The proper business behavior:Although there is no laws, decrees, referring to regulations, but in social life is considered to be the proper business behavior. (such as operation behavior, the doctor boxer game behavior);

The victim's commitment:The victim's promise, to meet certain conditions, the crime can eliminate damages the interests of behavior. Rome has "been committed no illegal act" (volenti non fit injuria) Maxim; but the damage can not exceed the personal law benefit or commitment can not go against social ethics.

The constructive consent:No commitment to the victims in reality, but if the victim knows the truth, of course will promise.

Self help behavior: fingering PE is infringed upon, in through legal procedures, rely on state organs may not or is obviously difficult to restore conditions, relying on its own strength relief law behavior.

The conflict of obligations:When there are more than two incompatible duties, in order to certain obligations therein, and shall not have non performance of other obligations of.

Self destructive behavior:Referring to his own interests behavior, such as Dutch act, self injury, he destroyed all his possessions etc.;

 

Five, stop form of intentional crime (one not typical crime)

First of all, only intentional crime andDirect intentional crimeOnly crime stop shape. Crime stop shape including the complete form of crime and unaccomplished crime, the former is the accomplishment of a crime, which includes criminal preparation, discontinuance of crime and attempted crime. Secondly, to stop the crime refers to the process in criminal behavior, due to the different outcomes relative rest of subjective and objective reasons no longer development and fixed.

 

 

 

(here: simple mode)

Preparatory stage

The implementation stage

To prepare the

Put into practice

The completed

 

 

 

 

 

 

 

 

(here: the complete model)

     Crime in preparation stage            Practice stage of crime                         

                                                                     

 

 

Start           Implement                                  Implement          Statutory crime

Get set           To start                                 End             State

 

Preparation or suspension                  Attempted or termination            Attempted or termination or completion

 

The different crime stages possible crime stop shape

 

(a) the complete form of intentional crime:

Complete form of crime is the standard of accomplishment of crime fundamentally at behavior whether elements with specific crimes, for different types of criminal law elements of different requirements, so the judge standard of accomplishment is not should be specific, generally speaking, is mainly the result crime, dangerous crime, behavior crime and the act crime, each have different standard of accomplishment.

 

(two) the unfinished form of crime

 

Article twenty-second [Preparation for a crime] to crime, preparation tools, manufacturing conditions, is the preparation for a crime.
　　One who prepares for a crime,Can be comparedAccomplished crimeLighter,EasePunishment orExemptPunishment.

Article twenty-third [Attempted crime] has already begun to crime, due to reasons other than the criminals will not succeed, is attempted crime.
　　For the attempted offense,Can be comparedAccomplished crimeLighterOrEasePunishment.

Article twenty-fourth [The discontinuance of crime] in the criminal process, gave up the crime or automatically and effectively prevent the result of crime, discontinuation of a crime refers to.
　　The discontinuance of crime, causes no harm,ShouldExemptPunishment; damage,ShouldEasePunishment.

 

1, preparation for a crime:

The subjective to commit a crime

The objective implementation of preparatory act

③ in fact failed to proceed with the implementation of crime

The failure to proceed with the implementation of crime is due to reasons other than the will of the people

In line with the above characteristics, is the preparation for a crime. Preparation for a crime and the crime preparation phase, preparation for a crime behavior has close ties, but is not the same concept. The concept of preparation and preparation behavior, not prepared to act by failing to causes beyond volition to the real behavior of the premise, even if has already begun to crime and crime, also has the preparation and preparation behavior, is the preparatory behavior on the conviction and generally do not have independent significance (except for a crime of a crime). But the preparation for a crime as a kind of form, can only exist in the crime preparation stage, not ready to act without preparation for crime, the crime preparation, preparation behavior is an objective fact to convict.

Expression of criminal intent is generally refers to the oral, written or other methods, the real intention of crime in the performance of the external behavior. Its characteristic is: the said person is a real criminal intent; said people with oral, written, gestures or other can let people know the intention to reveal the crime; criminal intent is the crime intention was not pure, created the conditions for the crime.

The essential difference between preparatory crime and expression of criminal intent is the preparatory behavior for a crime is: preparing tools, manufacturing conditions, to commit to promote the role of behavior, or is the crime of intentional behavior, has posed a threat to law; and the criminal intent is not to implement the crime plays a promoting role, only his intention to commit a crime behavior, not the implementation of criminal intention behavior, does not constitute a threat to the law benefits. For example, just tell others, they will implement a crime, which belongs to the criminal intent; if you tell others, to others with their common crime, is seeking for the joint behavior, which belongs to the manufacturing main body condition, is the preparatory behavior for a crime. Again, just tell others, said he would take a method to implement the crime, belong to the criminal intent; if the co discuss criminal plan, is the preparatory behavior for a crime.

 

2, the attempted crime:

The starting to commit a crime

★What is "to"? Preparation for a crime and criminal attempt to limit the

"Starting point" is not a crime, the behavior of the starting point but a crime. To mark the crime entered the implementation stage, the implementation of the behavior is a behavior, and a part of itself is a behavior. To mark the preparatory phase has ended, but not the end of the preparatory phase, because many of these crimes in the preparatory action after the end, for some reason has not started to commit a crime.

General (formal objective theory):The so-called start, is the beginning of the objective elements of a crime regulated by the criminal law act. (the start that flawed)

The essence of the objectiveThink, act is against the lawPressing dangerBehavior.

The essence of objective theory into the substantive actions and results. The essence of behavior that, embarked on realistic risk to achieve criminal behavior is implemented. And the form of the objective theory, the essence of behavior that basically to act without value. It said that, when the danger as attempted crime results behavior, risk that is against the law to achieve a specific degree (degree), is to begin. The result that pays attention to the valueless result. In fact, the general crime begins, substantial behavior and result that concluded there is no difference, but in isolation offense, two conclusions possible differences. For example, people will someone poison to the field through the post office, I hope that death someone after drinking. The essence of behavior that generally, behavior in sending the poison, had already started to commit a crime, because the act itself has the risk of death (send doctrine). But the results often think, only when the victim received a poison, it generates the danger, at this time can be identified as implemented criminality (reach).

The general idea of the book is, the nature of the crime is a violation of law, there is no infringement of legal interests behavior may not constitute a crime, but also could not be implemented act. Not only that, even if a behavior is dangerous against the law, but the risk is very small, the criminal law can not be regulated as criminal action. On the other hand, punishment of preparatory crime, but also has the risk reserve act against the law. Therefore, the act is only urgent danger has against the interests of behavior; behavior person began to implement this behavior is a behavior, to. Or say, harm against the interests of the urgency to achieve, is the implementation of behavior. As for what kind of behavior is in imminent danger of the law, should according to the specific situation of considering different crime, different cases; to review whether the act had contact with or close to the object of crime, whether the actor has already started using the instrument of crime, whether the actor began using the manufacturing conditions, whether the behavior of the further actions can cause the result of crime, and so on. For example, cause insurance accident insurance fraud in behavior, but creates prerequisite for insurance fraud; if the act does not made after insurance accident claims to insurance companies, risk insurance financial order and the insurance company property infringement is not urgent; behavior person claims to insurance companies act or proposed to pay insurance gold the requested action, is the act of perpetrating. The crime of rape behavior in order to achieve and the women to have sex with purpose, put the letter behavior, despite the stress behavior, to act but not the crime of rape; only contact or close to the victim and began implementation of violence or coercion, can be identified as to. In order to fraud behavior of public and private property, and forgery, forgery behavior itself may not make the property is in imminent danger, so is the preparatory behavior, began to use the fake document fraud, crime of fraud is to.

Several "Korea friendship for the start" example:

Pick to: property contact said;

To burglary: enter the room

A knife cut to:, aimed the gun at the victim

To rape, robbery: violence or coercion with urgency

Blackmail and impose exactions on start: as long as a stress on the line

The crime has not accomplished (unfinished crime) → here relates to the standard of accomplishment of crime

Due to causes beyond volition.

Causes beyond volition crime, is always against the will of the crime, the crime objective can not be accomplished, or the criminal thought impossible due to the forced to stop crime accomplished offense. In the attempt of crime situation, people hope the occurrence of harmful results will not change and give up; do not have behavior of human pursuit of the results, not because the behavior of people to give up the criminal intent, but for some reason makes the behavior of people to pursue the results did not happen; this violates the behavior intention, conflict and crime will. Specifically, includes three kinds of situations:

The first is the reason will restrain crime. That is a fact that the behavior people think they have objectively impossible to commit a crime, which was forced to stop. In this case, the continued implementation of crime, there is no room for the selection of the subjective, was forced to give up crime. For example, actor is the residential robbery, suddenly heard the siren, think the police to arrest her, was forced to flee the scene. Even if the car is not the car or is the police is not to catch people's behavior, but because the behavior person thinks he has objectively impossible to commit, still belongs to the causes beyond volition.

The second is the reason restrain the crime, which is one of the behavior person objectively impossible to commit a crime. For example, people are committing a crime, is the third stop, found and captured.

The third reason is the inhibition of crime. That behavior has its thought should be the act finished, but something stopped results. For example, the behavior of the victim out into the water after, think the victim will die, but a passer-by victim emergency escape.

Three the characteristics of attempted crime of the termination phase difference and respectively preparatory crime, crime, crime; only with the above three characteristics at the same time, the establishment of crime can be attempted.

Type the attempted crime:

A, the completed attempt and not the completed attempt:

This is to implement behavior whether the distinction between the end of the standard. Generally speaking, the completed attempt, refers to the offender will have its that reach all the behavior necessary accomplishment has finished, but due to the reason will not succeed. If the offender to victims of food poisoning after putting poison, the victim is discovered by others sent to hospital escape. Not the completed attempt, is due to causes beyond volition, makes the offender fails to reach all the behavior he thinks necessary accomplishment has finished, so did not succeed. For example, in the sword to kill, is the third uniforms. "Action is the end to implement" behavior, that is causing the harmful consequences, not including hazard after the behavior for other purpose by the implementation of the act. If the behavior person to death after injury, whether the end should be based on behavior, behavior person think death necessary behavior whether the end of the standard, not by whether Ripper standard. In the understanding of human behavior consistent with objective facts of the case, the completed attempt and not the completed attempt, often can reflect the degree of violation against the interests of law: the former can harm results closer, the latter from the harmful consequences far. However, do not conform to the understanding of human behavior and the objective facts of the case, the completed attempt and not the completed attempt, it cannot accurately reflect the degree of violation against the interests of law. Because according to the theory, the completed attempt and not the completed attempt, is to distinguish between the subjective judgment of human behavior as a standard to make; if the error occurs subjective behavior, such as originally need not to further implement the behavior can harm results (objective has been implemented for the end), and behavior of people mistakenly believe that his behavior is not the end, or on the contrary, it can not think of the end of the attempted invasion against the interests of law in not the completed attempt. So, on the completed attempt and not the completed attempt, still should be judged according to the size of the social harm behavior itself aggression against the interests of law.

B, did not cause any harm as a result of attempted and caused some harm results attempt:

Attempted crime is not without any results, there are two kinds of situation: one is behavior did not cause any harm result, two is caused some harm results, but decided the behavior nature not behavior person to pursue, harm result. In the direct intentional homicide case, behavior person shooting victim, due to the reason will not hit, then a situation is the former; if the shot, but did not cause the victim to die, just cause harm, it belongs to the latter.

To distinguish between these two kinds of attempted crime of different, to understand different attempted aggression against the interests of law. Involvement the latter obviously heavier than the former.

C, attempted crime and attempted crime due to impossibility:

This is to distinguish between the crime itself can accomplished as standard. Generally speaking, attempted crime, refers to the implementation of the crime itself may be accomplished, but due to the reason will not succeed; impossibility, refers to the implementation of the crime itself can't be accomplished thus did not succeed. The latter is further divided into the object impossibility and means impossibility. For example, the use of guns to shoot but did not succeed, is attempted crime; that is actually to shoot, belonging to the object impossibility. Moreover, the use of arsenic to kill someone but due to the timely rescue and did not succeed, is to attempt to use arsenic; but because of the wrong cognition using sugar and did not succeed, belonging to the means impossibility. Generally, means impossibility and superstitious offense has essential distinction, impossibility of means, the implementation of the behavior and cognition (or to) behave quite differently, and superstitious offense by the implementation of the behavior and the knowledge (or to) behavior identical; means impossibility because the understanding error, superstitious offense because the benighted induced; if not because of the error of cognition, means impossibility may result in harmful consequences; superstitious offense behavior under no circumstances may lead to results. Therefore, generally speaking, means not to commit crime;

Superstitious offense because made sense error, impossibility because made operation errors - Ruan Qilin

 

3, the discontinuance of crime:

The time of termination

Stop must be occurred in the "crime" in the process, then, in the implementation of crime to crime presents may be terminated before the ending. "Crime in the process of" first show, discontinuance of crime can occur in the crime preparation stage, implementation stage can also occur in the crime, this is an important distinction and preparatory crime discontinuance of crime, attempted. "Also shows that in the criminal process", before the suspension of behavior in the criminal process, is a crime; the criminal intention without any criminal act will give up crime intention, not to set up stop. "In the criminal process" also shows that, the crime has not yet formed ending, is not accomplished, not due to reasons other than the behavior of people will not proceed with the implementation of crime or not succeed; preparation for a crime, attempted crime, is an outcome of state, behavior shows ending state not after the suspension of crime; therefore, automatic restitution crime, not the suspension of crime; crime preparation and attempted, it is impossible to have the discontinuance of crime.

The time of termination, is decided by the effectiveness of suspension, namely "to give up crime or effective results in preventing crime", decided to suspend must occur in the criminal process. Abort cannot occur in the offense, but if the lack of reasonable explanation to the accomplishment of a crime, scope may artificially limit stop. For example, if considered dangerous offenders to dangerous state is accomplished, so in the event of a dangerous state is impossible to have the discontinuance of crime, which is obviously not conducive to the protection of the interests of the law. Visible, in some extent also depends on the correct judgment of other forms of the crime discontinuance of crime.

The suspension of the automatic

The discontinuance of crime isArbitraryThe attempt of crime, is compelled to.

With the "arbitrary" steps in Japanese criminal law judge:

(1People feel ") want to do it can continue";

(2) from the average person's position, also feel that "want to do it can continue".

MAXLanguage: the two steps is the subjective standard, then the objective standards of judgment

The suspension of crime, the actor "automatic" abandon crime or "automatic" effective results in preventing crime. This is the discontinuance of crime and crime, attempted crime to distinguish in the subjective signs. On the automatic understanding of suspension, there are different opinions of foreign criminal law theory: (1) subjective said that, people give up crime motive is based on knowledge of the external obstacles, is attempted, in addition the occasion is the automatic stay. The benchmark isFrank formula:Can reach the goal and not to, as the discontinuation of a crime; to achieve objective and not, as the attempted crime. This theory is facing the problem: how to judge the "can" and "cannot"? (2) defining subjective said that, only repentance, compassion, negative evaluation on their own behavior consciousness, motivation and based on feelings or give up crime, is the automatic stay, in addition is attempted. The defects of this theory is: will automatically and ethic suspended confused, too narrow scope of the discontinuance of crime. (3) the objective theory, reasons for not accomplished (cause the behavior people give up crime or prevent the occurrence) should be objective evaluation according to the general idea of society, if the circumstances forced the influence on people generally don't, that most people in the case will not give up crime, and the behavior of people to give up, is the discontinuation of a crime; if the circumstance at that time can produce compulsive effect for the average person, namely the general people will give up crime in the circumstances, people give up, is the attempted crime. Critics of the theory is: the subjective elements of the judgment standard and "automatic" does not conform to. (4) the compromise that, through objectively judge whether the actor know and how to understand the external phenomena, to see whether the phenomenon of forced outside influence on the behavior of human consciousness, then distinguish attempted and termination.

Preparation for a crime and attempted crime is due to reasons other than the crime the will of the people, therefore, does not belong to reasons other than the criminals will not proceed with the implementation of crime or not succeed, it should be discontinued crime. Causes beyond volition, is always against the will of the crime, the crime objective may not start or accomplished, or make crime people think objectively impossible to proceed or accomplished reason, therefore, for the automatic termination shall be understood as, people recognize that objectively may continue to implement the crime or may accomplished, but voluntarily give up the original intention of crime. First of all, people recognize that fact may continue to implement the crime or may be accomplished. This shows, behavior of human faces two possibilities: or to continue the implementation of crime, the accomplished crime, or not to continue, not the crime of buffer overflow has accomplished crime. In the presence of choice situations, not to continue the implementation of criminal behavior, do not make crime, the discontinuance of crime that human behavior is automatic. Secondly, the behavior to voluntarily give up the original intention of crime, no longer wish to harm results occur, but to harm result will not occur.

For the specific criteria, usually by using the Frank formula, but for Frank in the "can" and "cannot", should be based on the understanding of human behavior as the standard for judgment, and not based on objective facts judgment, is not at the same time according to the subjective and objective fact judgment. As long as the behavior suggested that it may be accomplished rather than to achieve the accomplished offense, even if objectively impossible of accomplishment, but also suspended; conversely, if people think that cannot be accomplished and give up, even if objectively may also accomplished, attempted. However, in some cases, according to the Frank formula to draw a correct conclusion. For example, a have been close to be a gun to B's head, trying to pull the trigger. The policeman shout, "stop" in the 100 meters, a fled. In fact, a in the circumstances, is entirely possible in the police caught myself before the B killed, he is also aware of this point, but don't want to be the police arrested on the spot and ran away. If a is in order to escape punishment and give up, in fact belongs to reach the goal without desire, does not affect the establishment of the discontinuance of crime. But I'm afraid few people agree with this conclusion. In this case, take an objective that may be more appropriate (established attempted). Moreover, during the A working in the field, on the night of robbery, robbery found each other is his brother B, then stop the robbery. If considered from the objective or physical point of view, A can still be robbed his brother's property, but to give up, should belong to the discontinuance of crime; if considered from the psychological or ethical point of view, A cannot continue to rob his brother's property, and belongs to the attempted crime. If that A behavior of desistance of crime, is applicable to Frank formula can; but if that A acts belong to attempted crime, you need to take the objective theory. So, whether in the take and subjective said consider objective said, still need to study the problem.

A variety of reasons people stop the crime forms, some sincere repentance, because some have sympathy for the victims, some because of the fear of punishment, some for leniency, and so on. On the one hand, will not cause discontinuation of crime behavior, reason as behavior outside the will, thereby denying automatic suspension. For example, in the case of rape, behavior person see women in menstrual period, know can rape behavior but also voluntarily give up, it is automatic, not because of women's menstruation is behavior person did not foresee the fact, that causes beyond volition. On the other hand, is not because of the existence of objective obstacles to deny the automatic termination. In the presence of external obstacle case, sometimes people don't realize, but to give up crime for other reasons, shall be deemed to be aborted; sometimes people recognize that, but that the objective is not enough to prevent its barriers to crime, but because of other reasons to give up the crime, can be identified as suspension.

Objective the suspension

Suspend is not just an inner state of change, also requires objectively suspension. The act of suspension is divided into two types: No, not as long as the end to implement behavior continued implementation would not have happened crime results, suspend the behavior is to give up to continue to implement the criminal act; act finished, do not take effective measures will result in the case of discontinuation of crime, behavior to take positive measures to effectively prevent the occurrence of crime.

Whether the behavior has finished, there are different theories in theory, different theories have different conclusions to the same case. For example, there are eight bullets in the gun, behavior person opened one gun, firing a shot, but only very slight damage caused by the other side, was not re shot. (1) the subjective theory to conduct criminal plan or cognitive content as the standard to determine the end of period. In the example above, if the perpetrator had only to open one gun, its behavior already ended, and the attempted crime is established; if the perpetrator had originally planned to launch more than two in the spring, the implementation of behavior is not the end, so the suspension of crime. Objective (2) said that objective danger in external forms of conduct or result as the standard to determine the end of period. In the example above, to the victim into the open one gun behavior itself is enough to cause death behavior, which has the result much damage, so no matter how the subjective considerations, the killings have end to implement, namely the establishment of the attempted crime. (3) breaking said advocates is the "no interdiction causality result" as a standard to distinguish whether the end of this state. Whether the behavior is caused by the state, has nothing to do with the behavior of people know, plan, will the subjective content, only according to the objective fact judgment. In the above example, if the first shot hit, to the victim, if the laissez faire attitude on the death of the wounded, they are "not interrupting causal relationship is the" state, so the act of perpetrating finished; if the first shot missed the victim, the behavior is not the end; if the first shot missed, then open the second gun, but did not hit the victim, the behavior has no end; if the second gun caused if the laissez faire attitude on the death of the wounded, the implementation of the act ends. The said clearly to whether need to take measures to prevent the occurrence of the benchmark results. (4) the compromise said that according to the subjective understanding of the comprehensive judgment behavior objective condition at that time as well as the perpetrator of the end of period. In the example above, the first shot only if the victim is extremely minor injuries, no deaths caused by dangerous possibility, but also continue to implement the behavior, so the action is not the end.

The book argues that, as discussed here is the completed, and whether need to take measures to prevent the crime occurs and the actor's subjective understanding contents linked to study: if people recognize that simply give up crime does not occur the result of crime, it is true, thenShould that behavior is not the end to implementBehavior; people who gave up the crime, then the suspension of crime. If the person recognizes the need to take positive measures to prevent crime occurs, it is true, thenShall be deemed to act finished; behavior person to take measures to prevent the result, on the establishment of the discontinuance of crime. If you act in fact does not end, but the behavior of people mistakenly believe that end, so not to continue the implementation of crime, attempted crime.

The behavior is not the completed cases, the behavior must be true to give up crime, rather than waiting for an opportunity to continue to implement the behavior. But it should be noted that, in the end to implement behavior is not the case, the behavior people who gave up the repeated infringement behavior, is the discontinuance of crime. Namely, the perpetrators have sufficient to cause the behavior, the results did not happen, people can continue to commit the crime, but give up continue to abuse, crime discontinuance, instead of the attempted crime. Under the circumstances the implementation of criminal behavior, prevent the result behavior, must be a sincere efforts,But the people not to act independently as necessary. Did not make a sincere effort, not to set up stop. For example, people did not achieve the independent combustion in the arson behavior, shouted "fire", and then run away, even if people put out the fire, also can not be considered a crime discontinuance. For not as a crime suspension, which generally show stopping behavior as their original duties.

Need to study the problem is, when to prevent the result itself constitute a crime, should be how to deal with? Foreign scholars have pointed out: "suspended its conformity with the constitutive elements of the crime, can be used as an independent crime punishment on their. For example, a part of fire damage to buildings for fire extinguishing and prisoners, their behavior may constitute the crime of damaged buildings." but, when the behavior consistent with the emergency, excluding criminal causality conditions, it should not be regarded as.

The effectiveness of the suspension:

No matter what kind of suspension, determine the nature of behavior must not act had pursued, crime result. Although the actors gave up the crime, or automatically take measures to prevent the results occur, but if the behavior nature of the action of people who pursue, the result is not crime, crime discontinuance. For example, one supporting a buy medicine of stomach, but will be a poison to B. But a regret, on the second day to B home to retrieve the drugs, and one that the drug has been take. A a B does not see what abnormality, went home, did not tell the B. A few days later, a B take a poison to death with. A while to prevent the results taken measures, but because the crime results still occurs, it is not the suspension of crime, but crime.

Research is needed, there is no causal relationship between the termination behavior and results did not occur, whether the discontinuation of a crime? That human behavior to avoid results make active efforts, but the act itself sometimes cannot make results due to the actions of others or to prevent it happens, whether discontinuation of a crime? This is controversial in criminal law theory. The book certainly said. In general, the following three cases: (1) the suspension of crime termination behavior person independent prevents the result occurs, the suspension of crime. (2) participation suspended human behavior with other people, to prevent the result occurs, as long as they can identify the behavior of people make a sincere effort, and the suspension of crime. If the perpetrator to victims of food put poison, see the pain unbearable Dunsheng regret, immediately call the emergency phone, the victim will be sent to the hospital, the doctors rescue out of danger, and the suspension of crime. (3) the behavior people gave up the crime in the criminal process, or automatically to take effective measures to prevent the results, and the results did not occur, even if the act itself does not lead to the accident occurred, or objectively completely because of the behavior of others to prevent the result, and the suspension of crime. For example, behavior intended to kill, but its launch objectively poison does not reach usually lethal dose; in others found vomiting, very painful situations, people automatically others rushed to hospital; even if the do not resuscitate not death results, are suspended, not attempted, nor attempt and the suspension of cooperation. Because the behavior of people in recognizing the crime case can automatically take effective measures, the results did not occur, should think that accords with the essential feature of discontinuation of crime; otherwise it will lead to the unbalanced. Article twenty-fourth of the criminal law "requirements for effective results in preventing crime", between this surface request to suspend the behavior and results no causal relationship exists, in fact is the requirement of the crime results did not occur, the actor to make sincere efforts to take effective measures. Therefore, request to suspend the behavior and the results did not occur must exist between causality perspective, it is worthwhile to study.

The discontinuance of crime is not without any result, determine the nature of behavior but not the behavior people who pursue, crime result. For example, direct intentional homicide, homicide behavior determines the nature of the original pursuit, is the result of death. Conduct in the killing process automatically give up crime or take effective measures to prevent the death results, as long as there is no death results, even causing bodily injury or others, the establishment of intentional homicide suspended, and can not be identified as intentional injury crime. Therefore, the discontinuance of crime is the crime caused some harm to suspend and did not cause any harm result. Not only is this distinction plays an important role in the sentencing, and has the important meaning regarding the characteristics of suspension of a correct understanding of crime.

Four the characteristics of crime termination, which were distinguished with the preparatory crime, attempted crime, crime. Have these four characteristics, only the suspension of crime.

 

Note the dangerous crime and actual damage offenseThe double crimeAlthough, for the crime of dangerous crime, but the real harm results is not generated can beSuspension

Six, the common crime (not the typical crime of two)

(a) the conditions for the establishment of joint crime:

The establishment of common crime in accordance with the constitution of crime as the premise, but according toSome common crime, need not have to conform to the same crime, as long as the property is the overlap between the implementation of more than two people crime can be the establishment of common crime in the coincidence limit.

 

With overlapping nature of the situation is as follows:

(1) when the relationship between the coincidence of law article two provisions, the provisions of the regulations are generally coincident property crime. As the law and regulations of theft, snatch weaponry, military supplies crime theft, robbery crime law, is the relationship between the special law and common law.

(2) as similar to the law benefits two criminal violations of the same, wherein a crime than another more serious crime, from the normative sense, serious crime contains non serious crime content, there are also coincident property (may also belong to coincidence, the law may also be the imaginative joinder of offenses), able to set up joint crime in coincidence range. More typical are: production, sales of counterfeit crime and production, sales of substandard drugs crime, production, sales do not meet hygiene standards of food crime and the production, selling poisonous and harmful food crimes, the crime of intentional homicide and intentional injury crime, the crime of rape and forced obscene, insulting women sin, kidnapping crime and the crime of illegal detention, robbery with the robbery, robbery and theft, robbery and the crime of blackmail and impose exactions on etc..

(3) similar to the law benefits two criminal violations are not identical, but one crime violate law contains another criminal violations of the law, and thus the existence of coincidence in nature (may also belong to coincidence, the law may also belong to the imaginative joinder of offenses), also can be in superposition the establishment of common crime range. For example, stealing, spying, buying, illegally providing state secrets, intelligence crime different and similar to the law benefits illegally obtaining state secrets, a don't know B is for overseas institutions, organizations, personnel illegally providing state secrets, and stealing state secrets to B, a and B are in the range of illegally obtaining state Secrets crime in joint crime, but the B behavior shall be identified as stealing, spying, buying, illegally providing state secrets.

(4) in the statutory transforming crime case, if the number of people together to commit a crime prior to transformation, and some people implement the transformation behavior, but others don't know, should be turned in front of the joint offence.

 

1, the main conditions: the subject of more than two;

Note, for more than two people here does not refer to all people, but must conform to the crime subject of crime person, natural persons, must be of legal age, has the ability of control and identification of people. Because the criminal law stipulated the unit can become the subject of some crime, so, the implementation of joint more than two units as well as the unit and natural person crime, may constitute a crime.

The following special attention:

(1) two has over 14 years of age under the age of 16, or a full 16 years of age with a full 14 years of age under the age of 16, seventeenth common intent penal law provisions of the second paragraph of the crime, joint crime; the implementation of the behavior, not the establishment of joint crime.

(2) a legal age, has the ability of control and identification by people, not of legal age or no identification and control ability, the implementation of criminal behavior, does not constitute a crime. This phenomenon in the theory of criminal law called the indirect principal offender.

(3) the unit crime, the persons directly in charge and other directly responsible personnel, the establishment of common crime and not the unit itself, just as a unit crime and criminal responsibility shall be investigated according to law; however, the persons directly in charge and other directly responsible personnel still crime.

 

2, the subjective conditions: joint criminal intention and criminal means to contact each other;

The mutual recognition of intention

(1). Nature, common intent requirement of each joint offender knowingly common crimes harmful consequences to society, and hope or indulge harm results occur. The same intentional crime, is refers to the average for the same crime accomplice or with a few (common crime committed several crimes when hold intentionally, deliberately) and the only requirement in the scope of the provisions of the criminal law in the same, does not require deliberate form and specific content of the same. Deliberately form, both sides is direct intention, both sides are the indirect intentional and one for the direct intentional party for indirect intention, as long as the intention of the same crime, common crime can be established. On the specific content of intentional, only requires the offender has the understanding of the factors of legal and will factor, even if the specific content of deliberately not completely the same, also be the establishment of common crime. For example, a crime and intentional instigation, in specific contents have differences, but does not affect the establishment of joint crime.

(2). The joint criminal intention required the accomplice subjective communicate, communicate with each other, are aware of their own is not in isolation to the crime, but in the common crime and others. Unidirectional intentional is the one-sided accomplice ↓

(3). "one-sided accomplice": refers to the people involved in the same crime, the party is aware that he and others in the common crime, while the other did not recognize the others and their joint crime. The one-sided accomplice, there may be three kinds of circumstances: one is to carry out the one-sided, namely the party did not recognize the other party to implement the behavior. For example, B is the desire to rape behavior of C, a in B without knowing it, the use of violence will c wounded, B can implement smoothly rape behavior. Two is unilateral abettor abettor, is not aware of the instigated situation. For example, a third wife B and others adultery pictures and a gun on the table B, B found immediately after the intention to kill, kill the C. Three is unilateral help, that the party did not know to help the other party. For example, a that B are chasing C, and C because of the enemy, they secretly set up obstacles will c tripping, thus successfully killed C B. How to deal with this, controversy exists in Chinese and foreign criminal law theory. Some people deny the concept of one-sided accomplice, that one-sided accomplice is not joint crime. There is certainly one-sided accomplice concept, think of all the one-sided accomplice is the establishment of common crime; some people only admit one-sided instigator and one-sided accessory; some people only recognize the one-sided accessory. China's criminal law theories are certainly one-sided accomplice

Is generally believed that the one-sided perpetrators, unilateral abettor not in the treatment of common crime, and according to theThe indirect principal offenderThe theoretical treatment, but theThe one-sided accomplice(such as the provision of tools, stand sentry duty, not a direct violation of the object) can be admitted as an accomplice in theAccessory

Without common situation

According to the "common purpose" of this condition, the situation is not joint crime:

(1). The joint negligence crime is not joint crime. Because the common crime is than a separate crime has a greater social harm, because it is based on the joint criminal intention is a crime. While the negligence crime determines the joint negligence crime may not have a common crime demanded that integrity. Joint negligence crime, as long as according to their negligence crime conviction and sentencing can be respectively. Don't need to be punished as a joint crime. Article twenty-fifth of the criminal law provisions in the second paragraph: "more than two joint negligence crime, not to be punished as a joint crime; he should bear criminal responsibility, punishment according to the crime they have committed respectively."

If the joint principal offender, in theory of negligence, then certainly aggregated consequential offense of joint principal offender. Since more than two people together to implement the basic behavior, and by the basic behavior leading to aggravated consequence, namely common behavior of more than two people caused serious results, and more than two people were on the increase results have foreseen the possibility, therefore, more than two people to the aggravated consequence responsibility; even worse results on the surface by one person the act, but the act is still part of the common basic behavior, on the whole still can definitely cause the common behavior of more than two people, so there should be part of the implementation of the principle of full responsibility.

(2), intentional crime and negligent crime behavior is not joint crime. If the duty police AWOL, major criminal escape. The former is negligence, the latter is intentional, objectively, although has certain contact, but not intentionally form organic whole together under the control of, therefore is not joint crime. Deliberately (fault) behavior and innocent action, not the establishment of common crime.

(3). At the same time make no crime. At the same time make is more than two persons at the same time in their violation of the same object, but without contact conditions between each other. Such as a, B two people while the store fire machine, agree without prior without previous consultation at the same time to fire place stolen goods. Because a, B two people subjective without contact with each other, so it is not joint crime.

(4). We have intentionally related criminal behavior, but not the subjective contact each other, not the accomplice. For example, a first C homes to steal a color TV set, B to C home to steal a motorcycle. Two people in spite of the theft act the same, and it is the crime in C, but due to the lack of "common" intentionally, it is not the establishment of common crime.

(5). More than two people together to implement different crimes no coincidence contents, not the establishment of common crime. For example, a and B, a total of two people hired a boat in a drug smuggling, smuggling, smuggling obscene articles B. Due to the intentional content and nature of the two people do not belong to the same crime, but a crime of smuggling drugs and crime of smuggling pornographic articles, also do not coincide in content, so it is impossible to establish a joint crime. However, if a and B, two were smuggling action each other out helping behavior or to hire a boat smuggling complicity, constitute the two crime.

(6). Beyond the common intent crime (committed outside the limit), is not common crime. For example, a B C abetting theft of female property, in addition to the implementation of B theft, rape the C F, Jia unaware. A, B two is the establishment of the accomplice of larceny, but was not an accomplice in the crime of rape.

(7). Harboring, non premeditated shield, harboring stolen property, selling stolen goods and other behavior, does not constitute a crime. But if premeditated, is the establishment of common crime (see article 310th paragraph second).

 

Attached:IndirectPositiveMake (indirect perpetrator)(using non principalOthersThe implementation of crime situation):

In general, the indirect principal offender refers to the use of non criminal crime of others. For example, people make their behavior under 13 years of age who killed his son neighbor children under the age of 3, belong to the indirect principal offender. System status of the indirect crime, in criminal law theory has yet to be determined. Some scholars of the indirect principal offender as the constituent elements of a compliance (or causality) were discussed, aimed to show that the act of the indirect principal is in line with the elements of the act; some scholars will be incorporated into the crime of indirect principal research, aims to show that the indirect principal offender and common difference between perpetrator, abettor. The book argues that, not the indirect principal offender is a separate crime, in other words, the indirect principal offender may also constitute accomplice, and others, in addition, the existence of indirect principal offender and the instigator of the distinction, it discussed the indirect principal offender.

The principal about the indirect perpetrator, before the general use tool theory to explain the. That is used as a sword sticks, just use the tools; since the sword sticks the implementation of crime is the perpetrator, it should also certainly will of others as a tool for the implementation of crime is the principal offender. But, after all, is the use of those differences and simple tools, so how to judge by the "tool" (the judgment, or according to the normative judgment according to the facts) is still not clear problem. However, the tool theory see direct actors is the essence and the implementation of action according to the behind the scenes people mean, then advocate the behind the scenes as the principal offender. So, now the criminal theory mostly take dominance theory, namely the behind the scenes dominated the direct actors behavior, so the principal definitely behind human control behavior. However, in any case, that behind the scenes people dominate the direct actors, remain unclear.

The establishment of the scope of indirect principal offender:

(1) use not of legal age or no identification and control ability of human body activity. Such as the use of people under 14 years of age or unable to recognize the mental patient control ability to kill someone. Due to the lack of normative consciousness, can not form a standard obstacle (can't form against motivation), only the implementation of action according to the mean, so use belongs to the indirect principal offender.

(2) the others do not have behavior of physical activity or forced to physical activity, which is called the "death" or "based on constrained command" physical activity. Such as the use of other reflex action or sleep in the action; others make the loss of free will and making use of their physical activity.

(3) the lack of intentional behavior (damage to people who do not know the implementation behavior). For example, a doctor who does not know the nurses and patients to inject poison, constitute the indirect principal offender.

(4) using the proper behavior of others, such as the use of self-defense, others emergency behavior crime. For example, a to kill B, and abet B kill C, at the same time, B to kill C fact inform C, let C be justifiable defense preparations; B in the killing of propylene, propylene self-defense to kill B. A is the indirect principal offender. For example, the court's behavior, false accusation others causes others were sentenced to death, belongs to the false accusation of imaginative joinder of crimes and the crime of intentional homicide.

(5) the victim behavior. Such as forced the victim Dutch act.

(6) use of intentional tool. The establishment of some crime in addition to intentionally, also asked the actor has certain objective or certain identity; the use of intentional tool, is used while the general conditions the subject of crime but lack of identity crime, or being used have intentionally, but the lack of objective of crime with purpose. If the former, national staff to accept bribery of non national staff's wife; if the latter, with a profit objective using ethylene obscene articles without the purpose of indirect principal, a set of crime of spreading obscene articles for profit.

In the first five cases, the use and to be used may not constitute joint crimes shall be respectively; the behavior and using the behavior is, and should be taken as an evaluation for the use of the act of perpetrating. Research article (6) cases. This situation may constitute a common crime. For example, the national staff to use the wife receiving bribes, if the wife does not know, belong to the first (3) cases, of course, does not constitute a crime; but the (6) cases refers to the wife informed; since the wife know and accept bribes, of course, the establishment of the accomplice of bribery; nevertheless, the criminal law theory still think the national staff is the indirect principal offender. Moreover, in a, although do not have the purpose of making profit, intention and behavior but with crime of spreading obscene articles; according to the common crime, common crime of spreading obscene articles and the establishment of a crime; but the use is still indirect profit crime of spreading obscene articles. Thus, think and use the indirect principal offender does not form the accomplice relationship viewpoint, questions.

 

3, the objective conditions: joint criminal behavior, including joint act or preparatory act

Division of joint crime may be expressed as four conditions: one is the principal Act (ACT), which directly resulted in the damage behavior of the joint criminal intention, it plays a key role in the implementation of the content; two is the organization behavior, organization, planning, command of common crime, the common crime the nature, scale, play a decisive role; three is the instigator, namely deliberately cause others to commit a crime purpose, criminal intent to others the formation reason; four is to help behavior, which help the behavior of crime, the common crime play an auxiliary role.

Joint crime can be implemented at the same time, also may not be implemented at the same time. For example, a, B, C and property theft, theft by a preparation tools, B to the place where the property theft, stolen goods by post. A, B, C three human behavior is not at the same time, implementation, coordination with each other in a common purpose is, under the domination of consistent. -- Co conspirator.

 

(two) physical form of common crime theory

Physical form of common crime theory

The theory of criminal law according to different standards, the form of common crime of different classification.

1, any common crime and the necessary joint crime

A man in specific provisions of criminal law can be implemented separately by two or more persons jointly crime intentionally, either the common crime. Such as the crime of intentional homicide, arson, burglary, which can be implemented by one person alone, can also be conducted jointly by two or more people intentionally; when more than two people together, is any common crime. Common crime in the general provisions of the criminal code is basically arbitrary joint crime. For any crime, according to the relevant provisions of general principles of criminal law and the provisions on joint crime conviction and sentencing.

The criminal law provisions must be made by more than two people common intent crime, common crime is necessary. This type of crime in general only according to the relevant provisions of the criminal law of the conviction and sentencing. The theory of criminal law will usually necessary joint crime is divided into two categories: the crime and the crime.

The crime, refers to the existence of more than two people are to act as elements of crime. Bribery crime is the adaptation cases. The provisions of the criminal law on the crime can be divided into three types: one is the same and the legal penalty charges, such as the crime of bigamy; two is on both sides of the charges and the legal punishment are different, such as bribery and bribery bribery crime; three is the only punishment party behavior, such as selling obscene goods crime of trafficking in profit, only punishment people, not punishment buyers. The problem is, in the third case can directly to the buyers as an accomplice treatment according to the provisions of general principles of criminal law? Foreign criminal law theory this debate. The first kind of view, lawmakers in the provisions of the crime, of course, is expected to each other's behavior, since legislators not to establish the provisions of punishment each other's behavior, suggests that the legislators that their behavior can not be punished; if the other party in accordance with the abettor or abettor theory, it is not in accordance with the spirit of the legislation. The second view is that, even in each other's behavior is abetting and helping the penalty, but as long as belonging to the principal type forms of participation, it can not be punished; if more than the setting forms of participation, should take the instigator or help offenders punished. The third view is that, if the other party actively participate in the implementation behavior, can the instigator or help offenders punished, such as active request seller sells pornographic materials to their own, can according to traffic obscene goods crime of instigation crime for profit. The fourth view, the legislation is not punishment each other's behavior, essentially because the illegal behavior of the other does not have the accomplice or not has the responsibility; therefore, if is illegal and has the responsibility, then establish abettors or help offender. The book argues that, the provisions of the criminal law of the crime of selling pornographic articles for profit, of course, expect the behavior of buyers, since the criminal law does not establish penalties for buying behavior, suggests that the criminal law that the act does not constitute a crime, so it cannot be recognized as an accessory or accomplice buyers. However, if the buyer had no intention of selling pornographic articles on human trafficking obscene goods, the possible establishment of abettor.

The crime refers to the most people carry out towards the same goal behavior for the elements of crime. Including the common crime and group crime in our criminal law, the former such as article 317th of the criminal law of the crime of the armed Jieyu, such as participating in a terrorist organization 120th organization, leadership, crime. Among them, some provisions of the ringleaders, active participants and other participants of the statutory punishment; some provisions only stipulated the ringleader and active participant in legal punishment. In the latter case, not according to the provisions of punishment other participation behavior in general. Because many of the prisoners to more people, only punishment several participation behavior of legislators, is to limit the scope of punishment; if according to the provisions of punishment other participation in general, is in violation of the spirit of the legislation.

Joint crime, the 2 conspirators and non premeditated

Before starting to commit a crime, the offender has already formed the joint criminal intention, the implementation of crime of the planning and consulting, is a common crime premeditated. "Conspiracy" generally refers to two or more people to carry out specific crime, to achieve consistency in order to make their meaning as content. Because the prisoners through static butterfly have sin in the hands, goal, method, the nature of time, location of the planning, the crime. It is easy to damage, serious.

The formation of joint criminal intention in the process have just begun or crime in joint crime, it is non premeditated." [37] should be differentiated from the special attention and also make the identification.

If in the beginning when forming the joint criminal intention, and common crime, the accomplice of coping with common crimes per capita and the results of responsibility.

If the first act has been implemented in one part of the behavior, behavior in common crime means in practice or help, common crime is called successive. After the behavior of their participation in the first after the behavior and behavior constitute accomplice is not much doubt. For example, a have been illegal detention of C three days, B from the fourth day and a common illegal detention C, a and B are unlawful detention crime (continuous offense). Moreover, A have to C the implementation of fraud, the C produced a mistake disposition, B learned the truth involved in fraud, from C to obtain the properties, B and A constitute the joint crime of fraud (plural acts occasions).

The problem is, after the first person to participate in the implementation behavior before the behavior and harm result is liable ? For example, a robbery violence intentionally to C, B to rob the meaning involved in crime, took C. Since B knows a robbery, and robbery and there is no end, and common intent of robbery, and implement some behavior belongs to the robbery, so a, B two people constitute the accomplice of the crime of robbery. But if a death caused by violence, C, B is the result of death responsibility? Definitely say that, behavior and the results after the perpetrators of the first people to participate in front of the act shall bear the responsibility. The main reason is: (1) both people understand the intention and behavior to human behavior, and the first is already causing events, it indicates that two is integrally formed the common intentional behavior. (2) in the law, a joint crime (crime) because of the mutual understanding and participation in the implementation of the behavior of others and bear the responsibility, as for the mutual understanding of time is not an important issue. (3) after the behavior people use first is already the result, as a result of using their own, should the responsibility. The negative thought, not responsible behavior and the behavior of people involved in the implementation of the first act before the. There are two main reasons: (1) first is already implemented the behavior or has caused the result, causes the behavior may not be the behavior and the results of the first human behavior, and thus could not bear the responsibility for the actions and results. (2) after the behavior people understand behavior and the results of the first human behaviors, but this does not mean that the two have common intention of the behavior and the results, do not show the behavior and the result caused by the two. Book in favor of negation. To understand the first behavioral intentions and not equal to form a common intention and behavior; the causal relationship between the use of first is already the result does not mean that after the behavior and the results; behavior person shall not bear the liability without any causal relationship and the consequences of their actions. , successive complicity: don't assume no aggravating circumstances of implementation.

 

3, the simple common crime and complicated joint crime

More than two people common intent crime, common crime is simple. In this case, the offender is the principal, so in theory of criminal law is also called the common principal offender. The establishment of joint principal offender must have two basic conditions: one is the criminal intent, which more than two people not only have implemented behavior meaning, but also has use each other, complement each other behavior. The second is to carry out the fact that more than two people together, some of the implementation of the crime, either separately or as a whole, the offender behavior has a real danger to the. If one's just abetting or helping behavior in two people, are not set up joint principal offender. However, as long as two people to implement the same crime act, even if the behavior is not exactly the same, but also set up joint principal offender. For example, a, B common robbery, a knife threat, B take property, a, B two people constitute the common perpetrator of robbery.

The simple common crime (or joint principal offender) shall be investigated for criminal responsibility should follow the principle of full responsibility part. The prisoner taking advantage of each other, complement each other's behavior, and the number of human behavior as a whole, each is criminal behavior is a part of other prisoners behavior, the other part is the behavior but also of your own behavior, it is the prisoner to bear criminal responsibility for acts and results of their own not only, but also to bear criminal responsibility for participation in the common crime, which is responsible for the other behavior is the result of the prisoners; even can not find out the results caused by who act, also want to make all of the results are prisoners bear criminal responsibility. For example, a and B, two people deliberately killed C, even if only a single bullet death caused C, B should also bear murder accomplished responsibility. Moreover, A to rape, robbery deliberately B to common intent on C violence, death caused by the behavior of A C. According to the theory of common partly crime, because A, B set up joint principal offender in the crime of intentional injury within the range, A, B of C (A death of criminal responsibility of criminal responsibility, criminal responsibility of the B raped to death robbery to death). In another example, a, B common killed C, caused by the death, but can not find out who behavior caused by death. Because the establishment of joint principal offender, is responsible for the A and B, on C's death.

Take part of the responsibility for all the principles of joint principal offender, does not mean to deny the distinction and culpability principle. Insist on some of the responsibility principle, the total prisoners should be treated differently, according to the joint offenders in common effect size on crime, to distinguish the principal, accessory and coerced offender punished in accordance with the provisions of the criminal law, the principle of punishment. It is self-evident that, the offender can only bear responsibility for the common intent to implement crime, to others beyond joint intention shall assume no responsibility for the crime.

The common crime committed by two or more persons are implemented, organizing, abetting, helping equal time, is a complicated joint crime. In this case, there is crime (crime), the organizing offender, abettor, accessory parts, their behavior and the concrete contents were different deliberately. According to the provisions of the criminal law, the several common criminals should be according to the size of the plays in the joint crime, respectively by the principal, accessory and coerced offender punished.

A simple classification of common crime and common crime is also worth studying complex. According to this classification, some common crimes may be neither simple nor complicated joint crime, joint crime. For example, a and B, two people together to rob others property C, but C did not receive instigation, a, B two people constitute accomplice, the crime is not simple common crime, it is hard to say is a complicated joint crime. Furthermore, the cognizance and punishment on simple joint crimes, may in fact than the identification and punishment of complicated joint crime is more complex.

4, common crime and the special joint crime

The former refers to no common crime organization form (including the common crime and the legal form of the common crime); the latter refers to common crime organization or group of joint crime.

 

(three) the provisions of the criminal law of common criminals and criminal responsibilityàSome behaviors, full responsibility

1, the principal and the criminal responsibility: -Primary elements are not the principal

One, to the organization, leading the ringleaders of criminal groups, punishment according to all the crimes committed by the group (regardless of whether participation in the planning, even know); two, the other principal, shall be in accordance with the participation or the organization, command of all criminal punishment.

The principal's identification:Cause the criminal intention plays a decisive role in the crime, the decisive

 

2, the accessory and the criminal responsibility:

Accessory: accessory role or play a supporting role. Or secondary effect, the former is the offender, the latter is the minor offendersThe perpetrator is not all is the principal, also belongs to the accessory possible (mainly to see whether minor)The punishment principle accessory: ShouldA lighter, mitigated or waived

 

Attached:Specific provisions of the criminal law in the specific crimeAid, assistance to help behaviorButNot as a common crimeSituation.1Funding, to betray the country, secession, armed rebellion, insurrection subversion of state power and other criminal activities, directly qualitative crime of endangering national security activities to finance crime (107):②, to a terrorist organization or terrorist crimes funded behavior, direct to fund terrorist activity crime (the revised one of 120th):③, assisting in the organization of prostitution behavior, to assist the organization prostitution crime directly (section third (358th); but the need to pay attention to, is not to say that these crimes are helping behavior, related crimes are not an accomplice of the other help behavior).The special:Help destroy, crime of fabricating evidenceEven in the absence of this crime, not by the complicity.

 

Attached:Separate provisions for the crime of instigation: incite secession crime; crime of inciting subversion of state power; instigating soldiers fled the crime; abetting prostitution, drug taking crime; lure lure younger child prostitution;The crime of obstruction of evidence.

 

3, the coerced offender and the criminal responsibility:

One is coerced offender included only stress and to participate in a crime,Does not include being lured in criminal cases;

The two is coerced to participate in a crime is not completely lost the freedom of will, only is not entirely voluntary, and there is freedom of choice, otherwise, can be identified as not to force majeure or emergency not bear criminal responsibility;

Three is the principle of punishment of the coerced offender, is"ShouldReduced or exempted from punishment".