跪求好心人帮我找下英文资料,要关于共同犯罪中止方面的,急~~~_百度知...
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发布时间：2024-05-04 15:59
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时间：2024-06-18 21:15
Piece of the suspension of common crime
Keywords: common crime; suspension; independence and reunification of contact; positive identification standard; the opposite of that standard
First, the problem leads to
(A) Title: to prepare a common robbery, how to deal with drop-outs (1)
Of individual criminal acts to be combined with analysis of the common criminal acts
Case: Liu, Wang, Zhang went to the bar robbery conspiracy, the same evening, three people named to the hall so that a white waitress相陪by Liu mounted in front of a white "big shots", Wang, Zhang with the elimination of the security of a white heart, and then wait for an opportunity to implement robbery. During this period, Wang found that white does not bring a player how much money, by a white-out, the trio decided that night not to discuss the implementation of robbery. Three to leave, Liu to the white of a 500 yuan money, and agreed the next day she again came to play. The next day, Liu was afraid, decided not to participate in the matter, something refused Wang, Zhang solicitation. Wang, Zhang went to two evening in a bar drunk white, grabbed 2,000 yuan in cash and mobile phone, with a total value of 4800 yuan.
Differences of opinion: Liu investigators on the conduct of any form of crime have had a different view.
... ...
(B) The judicial practice case: A, B, C three of conspiracy to robbery, and later as a punishment, and to find a pretext for not participating in crime, the last B, C completed crime, the acts of a determined?
Second, scholars of different views: (2)
1, said negative. That overall as a result of common crime, as China's "Criminal Law" to suspend the criminal provisions of the statutory crime is not the result of the premise, so as long as it is the result of a statutory crime by the realization, regardless of how the main part of the suspension of individual behavior should not be suspended as criminal.
2, I am sure that. Although a common crime that has the characteristics of integrity, but because of the common crime is committed by each individual, composed of independent acts, including automatic cut-off of individual crime, together with the whole crime out of contact after the results of its non-existent causal relationship, that the crime should be suspended.
3, the main accomplice said. Common crime in the suspension of that crime, it is necessary to distinguish between a principal or accomplice, even though the outcome of the statutory crime took place, as long as the accomplice, and in the results before the criminal intent to abandon the subjective and objective are implemented to prevent the occurrence of crime results acts of crime can be identified as the suspension.
4, cut off that. That individual acts of common crime in the crime did not automatically stop before the crime, and effectively prevent the use of other accomplices in the continued implementation of its previous acts of crime or to prevent the occurrence of harm results. Should be discontinued as a crime.
5, cut off and said that the combination of a causal relationship. Side of the view that the implementation of a common crime committed in the conduct of the perpetrator of the crime are interrelated acts, but the overall response to crime, including the other co-perpetrators of the acts. The other side of the suspension of guilty in a thorough exposition of the view that automatically stop if their criminal acts, and effectively put an end to the other common offenses or criminal acts effectively to prevent the occurrence of the result, and since then the implementation of the other accomplices of the criminal acts the same and achieve completed, and if they can prove that the suspension of criminal acts and was the result of no causal relationship, then the suspension of the same crime can be established. (3)
Third, a common crime: the act of independence and the unification of contact
First of all, the sense of natural behavior, the behavior is independent of each other, in a sense they are not dependent on each other because they have some of the perpetrators is the will of a free man.
Secondly, the sense of social behavior, they are interrelated, they are united in crime among. But before that, they do not have the sense of acts of criminal law.
Fourth, the establishment of a common crime committed suspension of rationality and that the standard of proof
(A) the reasonableness of the argument
1, the idea of the general public: even though they participated in the common crime of acts preparatory stage, such as conspiracy, criminal tools to prepare, but if they did not participate in the implementation of subsequent behavior, is that there is no crime, the suspension of up to a crime, should be reduced or exemption from punishment;
2, the suspension of the possibility of committing practice: In our view, as long as the offender prior to the elimination of their own behavior in the course of the subsequent impact on crime, that is almost equal to exert a force opposite. As to whether this force is large enough, it should be handed over to judicial officers in accordance with the general concepts to be grasped.
3, theoretical sublimation: Any intentionally (intentionally only crime was to stop the state of the existence of crime) to any crime, big or small the force is of the people, have an obligation to eliminate such forces. (4) As to whether the process of further development to prevent crime, it is to adjust the scope of morality. This view is more in line with the "self-responsibility" theory of criminal law. Moreover, the law would not expect any one person become a moral bottom, because the law is not imposing.
(B) that the standard
Positive identification criteria:
Resolved whether the suspension of the existence of a common criminal to suspend the issue of the status of the crime, the next question, that is, solutions to common crimes committed in the suspension of that standard. I believe that here there is no specific criteria, but only an abstract standard. This theory, as the Civil Code to prohibit the right to abuse them, it can only provide an abstract principle, as to what circumstances is the need to judge the right to abuse the concept of society and their own knowledge to be found. Common crimes committed by the suspension of that standard, we believe that the standard is:
1, the common crime of the suspension of time and space: in particular, include the following: First, begin to co-create the conditions for the implementation of crime and criminal acts preparatory; Second, the joint exercise of acts of criminal offenses started to implement the end of criminal acts, that is criminal implementation stage; Third, the crime before the end of the implementation phase, that is, prior to the completion of crime. (5)
2, the joint exercise of the criminal offense of automatic suspension. With a separate crime and that the standard non-discrimination, as follows: First, the perpetrator could be considered at that time continue to implement and complete the crime, it is automatically a precondition of the establishment; second is intended for the perpetrator to stop crime, This is the key to automatically set up the conditions. (6)
3, common to suspend the implementation of crime, the effectiveness of crime and thoroughness. As long as the offender prior to the elimination of their own behavior in the course of the subsequent impact on crime, that is almost equal to exert a force opposite, and this force is effective.
Identification of negative criteria:
Automatically stopped if the offender to participate in their own acts, and other subsequent acts of an accomplice to the crime and to achieve the completion of a state of suspension if they can prove that crime and subsequent results of no causal relationship can be set up to suspend crime.
Fifth, for the evaluation of the theory
Based on the above argument, it is the views of scholars on the previous evaluation, a view to further contribute to the author's view of the clear.
We believe that:
First, only two kinds of view is to see the acts of common crime and contact the independence of the side, but not on their understanding of a unified, it is their understanding of the concept of one-sidedness, it is undesirable for.
The third point of view, some scholars have criticized the Road, first of all, whether it is practical or刑法理论界are recognized in a number of common crime, because of the co-perpetrators of crime in the role of co-equal or similar to an accessory to the principal and not distinction, then the ways and means of identifying individual criminal complicity is the suspension set up? Secondly, the so-called principal and an accomplice, was co-perpetrators in accordance with criminal law of common crime in the role of classification. In many cases, before the end of the implementation of a common crime, it is not possible to accurately identify who the main culprits, who is an accomplice. B某甲ready to get together such as bank robbery, if both the implementation of the act of bank robbery, then某甲is the culprit, no doubt that B is an accessory;某甲in the crime but the preparatory phase of the initiative to abandon the criminal intent of the bank robbery and attempting to to convince B to give up crime, and B is still a robbery, in which case I am afraid it would not identify the culprit某甲, B is the accessory. At this time there is a logical paradox, namely, to give up crime, "principal" is also known as the culprit. (7)
Said fourth cut off completely in order to separate the suspension of criminal offenders to apply that standard for a common crime that standard, it is inevitable and too mechanical.
Fifth point of view, although with a cut off, said the shortcomings, but its reasonable, that is, that the introduction of a principle that the existence of a causal relationship. We found guilty of common crimes to set up the suspension, you can start from the negative side of that: If the other accomplices then continue to implement and achieve the completed crime, and if they can prove that the suspension of criminal acts and was the result of no causal relationship can be set up to suspend crime.
Sixth, the analysis of related issues
1, Some scholars believe that, in exceptional circumstances, the individual is not an accomplice as a negative as long as the need for effective prevention of crimes against the common occurrence of the outcome, you can set up the suspension crime. China's criminal law, pre-pass plan, subsequent shielding, harboring, and common crime. In this case, although if the prior plan pass, after the shield is not negative, harboring, the suspension can be set up crime. (8) I believe that Qualcomm seeking prior to the suspension of the establishment of crime must be clearly given before the introduction of criminal offenders do not cover up afterwards, harboring the. As for whether or not to block the implementation of criminal acts that fall under the jurisdiction of the moral scope of the field.
2, some scholars believe that the crime of rape, escape from such acts as crimes committed in the implementation of the criminal acts committed an irreplaceable feature of co-perpetrators of crime if there is the intention of the suspension, just to give up my will and criminal acts of crime that is can not to stop the implementation of other common crimes committed for necessary conditions (9). Other scholars believe that this view ignores the various acts of complicity between the mutual use of mutually dependent and complementary relations and the spirit of the organic links helpful, is the undesirable. The author believes that this view has merit, it at least provides us with the type of an act committed to provide us with a direction of thinking. In such crimes, if only the presence of the perpetrator and did not provide any help, then there should be a crime; If the offender has helped, and these acts have been irreparable, or can only use their own power or other power to stop the criminal process, with only their own ability to use force to stop crime or other conduct of the process of committing to the establishment of the suspension. The most effective way is, I believe that public power is to seek to intervene.
VII, China's criminal law on the suspension of the common criminal offenses and recommendations missing
The twenty-fourth of China's Criminal Law stipulates:
Criminal process, criminal or automatic waiver to effectively prevent crime occurs, and the suspension is a crime.
Committed to the suspension, did not result in harm, it should be exempted from punishment; to cause harm, it should be to mitigate punishment.
The author believes that their only crime, taking into account individual circumstances, it is not comprehensive. Based on the above arguments, the author recommends that this be amended to read:
Criminal process, criminal or automatic waiver to effectively prevent crime occurs, and the suspension is a crime.
Common crime, the waiver can prove the offender after the crime and no causal relationship, as the suspension crime. (The opposite of that standard)
Committed to the suspension, did not result in harm, it should be exempted from punishment; to cause harm, it should be to mitigate punishment.
【References】
(1) <<prepare common robbery, half-way out of how to deal with>> City's Henan Province, Zhang Yu-Ming Yang Chao
Korean Army Source: Xinhuanet检察日报turn from April 18, 2007
(2) <<Crime unilateral suspension of>> Author: Liu Jun, the Chinese papers Network Time :2006-09-14
(3) <<general problem of crime to explore>> ZHAO editor exploring contemporary criminal law theory (Vol. II) legal publishing
Society in November 2002 version 1 Page 453-454
(4) The author believes that this is the force should be strictly limited in the scope of spirit, such as the instigator
Crimes, the author has insisted that should be strictly negative in the relative age of criminal responsibility abetting people, and
Is abetting provisions of the Criminal Law Article XVII of the scope of criminal acts. If it is other criminal acts, then the establishment of
Indirect principal offender. And In addition, I believe that in principle should be to adjust the scope of the Criminal Code, which is also in line with criminal
of law.
(5) with (3)
(6) with (3)
(7) <<common suspension of the effectiveness of crime that the standard>>
(8) with (7)
(9) with (3)
