The distinction between co-perpetrator and helper perpetrator in the case of non-participation as perpetrator.
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2021.06.17
Question leads
There are actions and omissions in criminal law. In the case of actions, because the behavior of the perpetrator has obvious causal relationship to the occurrence of the harmful result, it is easy to identify the behavior of the perpetrator. However, when it comes to the occasion of omission, because the appearance of the act is "nothing", it is slightly difficult to incriminate and sentence the act of omission. In the case of genuine inaction, this problem is still easy to solve, but in the widespread inaction, especially when the act of inaction is involved in the act, it is not easy to characterize the perpetrator of inaction.
[Luoyang Child Abuse Case] Liu Mouli and Zhao Moufei abused Liu Mouli's child (under 2 years old at the time) many times during their cohabitation. One day, Zhao Moufei tied the victim with a bath towel and raised his waist. Head down and stand upside down on the bed, causing serious injuries to the victim, constituting a first-degree disability. Both of them constitute the crime of intentional injury. [Sui Mouli Selling Counterfeit Drugs Case] Sui Mouli, as the legal representative of a beauty medical outpatient co., ltd., connived at her brother Sui Moumin (general manager, responsible for daily business matters) selling counterfeit drugs, which constituted the crime of selling counterfeit drugs. (1) [Rape by Zhang Moumou] Zhang Moumou provided residence for the victim Shen Moumou, but did not prevent others from committing rape against Shen Moumou, which constituted an accomplice of rape with inaction. (2)
In practice, the nature of the act of omission is basically consistent with the nature of the act, but one has to ask further why the act of omission should be characterized as the crime of "intentional injury", which is usually committed, rather than the crime of abandonment? When there is an act of omission, some laws clearly set up corresponding charges for the breach of obligations. Why can't the perpetrator of omission be convicted separately in this case? In addition, even if the recognition constitutes the same crime, does the offender bear the responsibility of the perpetrator or the responsibility of helping the perpetrator? The result of the judgment is only the final answer, and the principle can be sorted out to have a better understanding of this special situation.
In the case of non-participation as a positive offender, the most complex and the most need to be explained is that when the perpetrator is committing a harmful act, two or more persons with an obligation to act are in breach of the obligation to act, and the obligations of the plural non-acts are not in the same category. For example, when a third person hurts a child, the mother and the nanny who cares for the child are both on the scene, and neither of them is indifferent. At this time, the mother and the nanny's omission can be equally evaluated? If so, what crime does it constitute? Is it a co-perpetrator or a helper perpetrator? If different, what should it be? This article takes this question as a reference, and briefly discusses my own views on the distinction between co-perpetrator and helper perpetrator in the case of non-participation as a positive perpetrator.
1. Based on the role classification method, it emphasizes that the crime participation system with the principal offender as the core ignores the influence of the qualitative behavior on the sentencing.
In judicial decisions, when a joint crime is involved, the format of the judgment document is generally based on "a certain person commits a certain crime, is a joint crime, plays an important role in the process of the crime, is the principal offender, so-and-so plays an auxiliary role in the process of the crime, is an accessory. For example, the Guangdong Provincial Higher People's Court (2021) Yue Xing Zhong No. 593 Judgment, Zhejiang Intermediate People's Court (2020) Zhejiang 01 Xing Chu No. 36 Criminal Judgment, Gaochun District People's Court of Nanjing City, Jiangsu Province (2016) Su 0118 Xing Chu No. 123 Criminal Judgment and so on are numerous.
In judicial practice, the role classification is the main method, and the criminal system that emphasizes the principal offender as the core is more inclined to a single principal offender system in the accomplice system. In China, Professor Liu Mingxiang and Professor Jiang Su are firm supporters of the single principal offender system. However, scholars who hold the system of discriminating accomplices, such as Professor Chen Xingliang and Professor Qian Yelu, have launched a series of fierce questions and criticisms on the single principal offender system. Because the single principal offender system does not further distinguish the type of participation of the perpetrator from the inside, but only divides the principal and accessory offenders according to the size of the role in the sentencing stage, its convenient and concise mode of operation is favored by judicial practice.
However, the author thinks that it is reasonable and not logically rigorous to adopt the system of backward single offender in favor of judicial practice. For example, the cause of the crime may not meet the requirement of illegality, or it may not meet the requirement of responsibility, but it cannot be considered that because the condition of the crime is met, there is no further distinction between the nature of the condition.
Moreover, the positive behavior is generally directly linked to the constituent element behavior. Relatively speaking, the positive behavior is the behavior that directly leads to the harmful result, which has a higher risk, which also provides the material for the following responsibility evaluation. The impression of helping the offender, on the other hand, does not necessarily carry out the constitutive element of the act, in the realization of the harmful result, according to the causal relationship of promotion, is "the act that makes the positive act easier", therefore, it does not necessarily show the type image of the constitutive element of the crime. Co-perpetrators in the academic division of their behavior, but also with the positive behavior is obviously different, in the principle of attribution to adopt the principle of "part of the whole responsibility. Since joint crime is a criminal act made by a plurality of criminal perpetrators based on joint intention, we can not only answer whether the behavior of each criminal actor meets the constitutive elements of the crime and whether it constitutes a crime, but should be dealt with in detail. only by accurately positioning the behavior of each criminal participant can we better meet the requirements of "joint" and "crime.
The distinction system distinguishes between the positive and the accomplice, and highlights the difference between the two from the illegal level, which is the embodiment of the fine treatment of joint crime. Therefore, in a joint crime, whether as a crime or not as a crime, the type of behavior of the participants should be accurately described.
2. theoretical controversy: the opposition between dominant and obligatory offenders is an omission, and both should accurately explain the types of behavior of the participants in the crime.
Because of the view that as the corresponding is the dominant crime, inaction corresponds to the obligation to commit, therefore, in the case of intentional crime of omission to participate in the act, the scholars who hold the theory of obligation to violate the obligation as the decisive element of the attribution of inaction, so as to determine that the inaction is established as a positive offender. On the other hand, scholars who hold the theory of dominant offenders believe that the act directly dominates and completes the criminal process and achieves the goal of infringement of the legal interests of the crime, so the inact cannot be evaluated as a positive offender, but should be evaluated as an aid offender depending on the situation. Later, with the development of the theory, in addition to the principal offender, help offender controversy, there are also obligations dichotomy chemistry, etc., based on their respective doctrines, the qualitative judgment of the non-acting person there is "help offender or innocence", "joint offender or help offender", "single offender" and other conclusions. The following is an introduction to the above doctrines, which leads to the differences and focus of debate between inaction and inaction in the context of inaction.
(I) Principles help offenders
Considering that in the criminal system, the constituent elements of each crime are mostly constructed in the form of act, the act of act is at the core of the whole criminal act, and the power of inaction in the criminal process should also be judged according to the judgment path of act. Based on this, the main point of view is that, as the actor, as the core figure who controls and dominates the criminal process, he personally implements the harmful behavior of the constituent elements and is the positive offender. The omission only participates in the criminal process by attaching to the behavior of the positive offender, which makes the crime as the actor easier to complete and helps the offender.
Professor Mashi Aigu believes that if an aiding offender is to be established, the person with the obligation to act will be established when the act as the perpetrator is more likely to be completed without fulfilling the obligation to act. (3) Professor Yesek, a German scholar, also believes that the act of inaction can take a back seat to the evaluation compared to the enthusiasm of the act as a positive offender. Although it has the possibility of establishing a joint positive offender, it may be more in line with the requirements of the theory of behavioral dominance to identify as a helpful offender. (4) The majority of the German and Japanese academic circles support the establishment of aiding offenders with non-participation, decomposing the dominant power as a positive offender into the dependence of inaction on the act, the indirect influence on the realization of the harmful result and the inability to control the causal relationship, etc., and drawing the conclusion that the qualitative nature of the act with non-participation is aiding offenders in principle.
There are also scholars in our country who hold the view of helping criminals. (5) Recently, Professor Li Hong has also taken a position of aiding criminals and has elaborated new reasons, pointing out in particular that judgments should be made from the perspective of inaction only when the possibility of committing an offence is exhausted. It is believed that in the case of omission to participate in the crime, the perpetrator who failed to be stopped (in fact, it is the perpetrator who carried out the act that led to the harmful result) played a dominant role in fact, thus establishing a positive offender, and the omission can only be evaluated as a helper based on its actual role in the crime process. (6) at the same time. As the obligation is only for the establishment of non-act to lay the foundation, can not provide the basis for the non-act to become a positive offender.
As for behavioral dominance, the following analysis can be carried out in the case of non-participation: even if the third person pushes the child into the water, the father does not help, and the child is drowned. Because as a human representative who needs to bear criminal responsibility, in addition to the father of the child, there is a third person who pushes the child into the water. Moreover, the inaction evaluation of the child's father's failure to help cannot change the fact that the child's death was pushed into the water by a third person. In other words, it was the direct act of the third person that caused the death of the child in the above-mentioned cases, and it had direct and complete control over the result of the death. The effect of the father's failure to help was only to help the third person to better carry out the murder. Therefore, those who did not stop it were only established (one-sided) to help the offender. (7)
For this theory, some scholars criticized the misreading of "the domination of inaction" in the statement. reflected in:
First, Professor Roxine's theory of criminal domination is based on crime as a basic research object, inaction can not be applied, the domination theory will be forced to inaction, of course, there will be a theory of non-integration. It is a circular argument to arrive at the view that inaction lacks dominess and thus establishes aiding offenders. (8)
Second, since it is said that the essence of inaction should reach the essence of domination as an offender, it still takes a fancy to the equal value between inaction and act, but in terms of domination, it is considered that the domination of inaction is in principle less than that of the offender. So what is the significance of considering the equal value of inaction and action? Obviously there is a logical contradiction. And the scenario of the establishment of a joint or indirect offender in exceptional circumstances is not explained. (9)
Third, if it is believed that where there is a connection of intent in a joint crime, there must be an act of action, so in any case it cannot be discussed with inaction as the focus, this is a complete abandonment of the independence of inaction. Moreover, in this way, when two actors have committed the same formal act, one may be evaluated as the positive offender because of the substantive contribution made, while the other can only be evaluated as an aid offender because of the status of the guarantee obligation, and the conclusion is clearly unreasonable.
In this paper, the theory of principle-assisted crime in the interpretation of the theory of crime domination, the wrong direction, so it has been severely criticized by scholars.
First, the theory of the domination of criminal facts is the guiding principle of positive offenders proposed by Professor Roxine. Among them, the direct positive offender applies to the theory of behavior domination, that is to say, the direct positive offender is dominated by the act of execution. The hallmark of a co-perpetrator is a functional behavioral domination, the actual content of which lies in the role of each participant in the achievement of the entire goal of the crime. In the case of non participation, especially when the person with the obligation of guarantee knows that the third person kills the victim who is related to his own obligation, "do nothing", even if nothing is done, the law gives him the obligation to actively act and requires him to avoid the occurrence of the result. When the actor of inaction is fully capable of stopping, and the result is avoidable, the actor of inaction does the opposite. It can be considered that the behavior plays an important role in the realization of the result. The causal relationship here does not exist in form, but it can be determined that there is a considerable causal relationship in normative evaluation. If the act of omission and the act of action emit two dangerous streams leading to the result, or overlap or juxtapose, the perpetrator of the omission should then be assessed as a positive offender.
Second, as far as the force that points to the result occurs, the "dominant" force of inaction should not be completely ignored. The parallel classification of behavior as and inaction means that there is no difference in the degree of social harm that the two can control or point to, but there is a difference in the way they reach it. In terms of inaction, because its physical appearance does not really grasp the actual causal flow trend, therefore, in inaction, the consideration is to avoid the size of the possibility of the result, that is, the degree of influence of the hypothetical causal relationship on the realization of the result. Compared with the domination as a criminal, the two are only formal differences, not qualitative differences.
Third, the positive offender and the joint positive offender should be different types of behavior. Therefore, if you want to solve the qualitative behavior of non-participation, you should make it clear that in this case, the inaction provides an "important role" for the act in the way of non-action, that is, it achieves the role of "closing" the gap in the realization of the crime, or the inaction and the act have considerable equivalence. It is reflected in that if it is considered not to establish a co-perpetrator, it should be from the perspective of the realization of the overall crime, and it provides an important role for the realization of the crime under the conditions of meeting the participation consciousness required by the co-perpetrator. Such an important role may not be realized in reality, but the hypothetical causal process has "nine times out of ten" will avoid the occurrence of the result. However, the requirement of dominant power as a positive offender is more strict, which means that it has played a key substantive role in the crime. The behavior of omission is the same as the substantive harm evaluation of act.
（二）义务犯理论
The obligatory theory, on the other hand, places the focus of the positive offender's judgment from the act to the breach of the obligation or not. In crime, although the form of crime based on crime is common, there are still some forms of crime-the law stipulates that it is additionally endowed with special obligations or establishes special relations, so that the perpetrator must perform or abide by the obligations. In the case of breach of obligations or special relations, the perpetrator becomes the core figure in the whole crime process. As Professor Roksin said, the positive nature of a compulsory offender should be based on the adequacy of the obligations conferred by law to its constituent elements, and then the name of the positive offender. Therefore, in the case of a duty offender, it is only necessary to judge whether there is a "duty" or not, and there is no need to use the theory of the domination of the facts of the crime as the standard. (10)
The theory of compulsory crime is the theory used by Professor Roksin to solve the legalization of the positive offense of the person who does not act, taking into account the structural difference between inaction and action, so the theory of behavior domination is not implemented to the end, trying to use "obligation violation" to eliminate the difference between inaction and action. The theory of compulsory offenders has been criticized by many scholars. For example, compulsory offenders can exclude the application of dominant offenders, which means that a person with a special status, even if he does not dominate the criminal process, will be treated as a positive offender.
On the contrary, in the case of a person who does not have a special status to participate in the crime, even if it dominates the criminal process, it cannot be regarded as a positive offender. (11) This has resulted in the unfairness of qualitative sentencing. Under the premise of the theory of compulsory offender, it is debatable that the omission can be regarded as the positive offender in the case of omission participation. The reason is that there is a misunderstanding of the system status as an obligation. In other words, it does not take into account the relationship between the possibility of avoiding the result and the obligation as well as the important role of behavior domination in the crime of omission, ignores the judgment of causal process in the crime of omission, and only sees the appearance sign that the crime of inaction as an obligation is not really inaction.
(III) New Obligation Two-Differentiation Theory
Since the one-size-fits-all principle of aiding offenders and committing offenders has been criticized by scholars, scholars who advocate the theory of dicrification have begun to discuss the distinction between positive and accomplices in different situations. The body of the doctrine still starts from the point of view of the obligation, divides the source of the obligation into the obligation of protecting the guarantor and the obligation of supervising the guarantor, and holds that the principal offender is established when the obligation of protecting the guarantor is violated, and the accomplice is established when the obligation of supervising the guarantor is violated. For example, Professor Matsumiya Takaaki points out that it is not, as most people think, that the status of the guarantor is the only criterion for determining the positive offender of omission, and that in the case of non-performance of obligations, the first thing to be solved is also the distinction between the positive offender and the accomplice ...... In the case of the guarantor of protection, the failure to act in breach of the obligation establishes the accomplice. (12)
On the one hand, it avoids the disadvantage of the view that inaction can only be established as a helper, and recognizes the independence of inaction itself, on the other hand, it also holds that obligation cannot be the only measure in the case of inaction, and considers that there is room for the establishment of a positive offender, so it is recognized by some scholars. (13) However, scholars have questioned why such a division can be made on the issue of inaction distinction and what is the basis for this formal division. (14) With the development of the theory of the two-differentiation of obligations, in recent years, some scholars have further explored this basis. Professor Yao Shi pointed out that the distinction of obligations should be guided on the basis of the substantive commonality of inaction and action, that is, by changing or not changing the causal process, the substantive commonality of exerting influence on legal interests, and advocated the theory of obligation distinction oriented to the infringement of legal interests.
Specifically, first, when the content of the obligation is habeas corpus, the obligor and the perpetrator have the same obligation relationship, and the causal contribution is the same, so they should be regarded as the principal offender; second, when the content of the obligation is property protection, when the property is under the overall control of the obligor, when the property crime needs to focus on the inaction of the obligor, the obligor is the principal offender. On the contrary, third, in the context of supervising a source of danger, when the source of danger opens the flow of danger, the obligor is expected to cut off the flow of the river. When the source of danger becomes a tool used by the perpetrator of the crime, the obligation of the obligor is only an accomplice when the connection between the two is cut off; fourth, in the case of prior conduct type obligations, if the prior conduct type causes another person to commit a crime, the forward person only helps the result of the infringement of legal interests and is an accomplice. At present, the perpetrator of the victim's loss of self-protection ability to cause others to commit crimes, whether the former person is established as a positive offender also needs to further judge the degree of weakening of the victim's self-protection function. (15)
It is not difficult to see that the obligation distinction theory for legal interest infringement is based on the degree of legal interest infringement by using the size of the influence of the obligation classification on the causal process, and the judgment of the positive and the accomplice is carried out under the guidance of this point. It can be seen that this doctrine differs from the other doctrines mentioned above in that, first, it recognizes the role of non-surety domination. In other words, the strength of the obligation plays a role of "blocking" or "truncating" in the causal process. Second, under the so-called metaphor of "the main flow of the river" and "tributary", from the standpoint of important role or causal contribution, it is further considered that it is guided by the degree of "infringement of legal interests" and will be divided into two parts as obligations, thus making the expressions of "the main flow of the river" and "tributary" more concrete, and the essence is a reinterpretation of the word "domination. This paper also agrees with the way of adding substantive thinking to the criterion of distinction.
However, there are still some conflicting opinions: first, how to judge the relationship between the magnitude of the infringement of legal interests and whether the causal relationship can be controlled? In other words, there is nothing wrong with using human life as the highest protection law, but does it mean that the breach of the obligation to act has reached the important position that the causal process must be blocked? The infringement of life legal interests is the manifestation of the result, and causality, as a bridge to the result, should have different judgment paths and should not be reversed from the result to the judgment of cause and effect. Second, even with the help of the concept of infringement of legal interests, the judgment process (property crime) is still judged by whether the act of omission is the core act of the criminal process, thus indicating whether the actor is "cutting off the river" or "blocking the river". Therefore, the classification of obligations does not play a substantive role, or in accordance with the important role of the actor to judge.
(IV) monist standard theory-the important role theory is desirable.
Whether it is the theory of compulsory offender or the theory of principle helping offender, the starting point of the theory is based on the concept of "as an offender is the opposite of the existence of an inaction", which pays too much attention to the structural differences between inaction and action. Thus, in terms of the solution, either the establishment of the positive offence of omission is based on the breach of the obligation, or the breach of different types of obligations as the standard, or the "domination" of the act of omission on the result is denied, recognizing that omission can only exist in dependence on the domination of the act. In this regard, some scholars believe that there can be a common standard of distinction between crimes and crimes of omission at the same time. (16) Among them, the discussion on the dominant and important role of the cause of the result is the most heated.
Professor Xu Naiman uses the cause-of-result domination as the common standard between as-committed and as-committed. Specifically, in the case of an act, whether the perpetrator is a positive offender is determined by whether the perpetrator has control over the crime at the time of the crime, and in the case of an impure omission, whether the perpetrator controls a certain social sphere-a source of danger or a helpless legal object-before the crime occurs. If the offence of omission is to be in an equivalent position with the offence of omission, the domination of the cause of the result needs to be achieved through the domination of the guarantor's obligation. (17)
The mode of operation of this doctrine is that the perpetrator has the obligation of guarantor to enter the occasion of the crime, and the domination of the result is realized through the domination of the obligation of guarantor. It can be seen that the result-cause domination theory is based on the form of the obligation two-differentiation theory, adding the consideration of the substantive factor-the degree of domination of causality. In this sense, it can be said to be similar to Professor Yao Shi's "theory of obligation distinction for legal interest infringement. Similarly, since the result-cause domination still emphasizes the exclusive domination of the cause of achieving the result, objectively, the act must indeed lead to the occurrence of a harmful result, and in the case of inaction, it is difficult to say that it substantially dominates the development of a causal flow.
The important role theory is guided by "a substantial contribution or important role in the realization of the crime" and can be applied in the absence of participation in the act. The statement also explores the problem of equivalence in terms of inaction, I .e., when the magnitude of the effect played by the force of the cause of the inaction directed to the occurrence of the result is consistent with the degree caused by the act, the inaction can be considered a positive act. In judging the dominance of the causal process, most scholars support the adoption of "exclusive domination" as the standard, which means that if the actor with the obligation of guarantee can indeed avoid the development of the harmful result by implementing a positive act, it means that the realization of the result has substantial domination, and the non-acting actor should establish a joint offender.
Conversely, if the guarantor performs the expected act as an obligation, only to make the outcome of the crime more difficult, then the perpetrator should be identified as helping the offender. It should be noted that the act of omission lacks causality from a natural point of view. Therefore, the manifestation of this important role is carried out under the condition of fiction causality. After determining the basis of the causality between the act of omission and the result, the important role is further used to say that the distinction between co-perpetrator and helper perpetrator is played.
To sum up, except that the obligator himself has excluded the "important role" or "domination over the realization of the result" from his own thinking framework, the other theories, whether they are the principle aiding the obligator or the duality theory, begin to pay attention to the independence of the act of omission itself with the further deepening of the study of the theory, and try to incorporate the substantive standard into his own distinguishing standard, but with different conclusions, it can be said to converge with the value orientation of the one-dimensional standard. This paper also stands in the position of the substantive standard, arguing that there is no obstacle to the application of the common principle of inaction and action. Through the further analysis of the structure of the act of omission and the above-mentioned contradictions, it is concluded that the important role theory can still be applied in the case of non-genuine omission participation as a positive offender, as detailed below.
3. inaction as a qualitative criterion for behavior-whether it has a significant impact on the hypothetical causal process
Even if inaction is in the form of "nothing" in appearance, it should be recognized that inaction as an independent type of behavior has its independent causal process of harmful results. In the behavior participation with the act, we should also recognize the role of inaction in the situation of action, but further analysis is needed to realize the contribution of the result, and then establish the common positive offender or help offender. Although the form of the constituent elements of the crime stipulated in the law does not exclude the act of omission, how to achieve the clarity of the causal relationship process between the act and the act becomes a problem in the case of no real omission.
Therefore, on the issue of the equivalence of inaction and action, two issues should be explained. First, what is the use of the harmfulness of inaction to maintain the same value evaluation as the harmfulness of "cutting with a knife" and "poisoning with poison. Second, in inaction, even if the act of inaction is dangerous, what is the causal relationship between it and the result to judge? Is the performance of the obligation of omission sequential? Applicable under this topic, it is shown as: in the case where the omission of the perpetrator does not prevent others from committing crimes, can the omission be evaluated in the same way as the act, and how can it be evaluated in the same way? How much contribution does the omission provide in the causal process leading to the occurrence of the harmful result? Does the order of performance of obligations provide an important contribution?
(I) The content of the equivalence principle points
The principle of equivalence of non-genuine inaction is intended to show that the "inaction" in non-genuine inaction has the same valence as the "act" in the act, so as to realize that there is no obstacle in the constituent elements of the act, and to solve the problem of essentially explaining why the obligation as an obligation is lacking in the constituent elements but can still be applied and punished as the constituent elements of the act. Since the principle of equivalence is the principle of interpretation of non-real inaction, and its original meaning is that the risk of legal interest infringement caused by inaction is consistent with the degree of risk of legal interest infringement that the constituent elements of the act are intended to achieve. (18) How to judge the danger here should be combined with the comprehensive circumstances of the case, such as time, place, environment, character characteristics, etc.
The principle of equivalence, in terms of the obligation as an obligation, manifests itself in the situation in which the person with what status violates the obligation as an obligation to the extent of the urgency of the infringement of the legal interest. Guided by the principle of equivalence, the judgment of performance as the strength of an obligation needs to be clear. Different degrees of violation of the same obligation may lead to a world of difference in the final conclusion of the crime. The typical situation is the crime of abandonment and the crime of intentional homicide by omission. From the perspective of the violation of the obligation, there is no difference between the two. Differences arise only in the extent of the breach of the obligation. Therefore, the following considerations can be made with regard to the issue of determining the material of equivalence:
First, the degree of judgment as an obligation varies, first of all, around the relationship between legitimate rights and interests and as an obligation. The essence of crime lies in the infringement of legal interests. In the case of non-inaction, a person with a high degree of obligation violates the obligation of act, and the harm evaluation of his inaction is naturally higher, which should be evaluated first, which ensures that further restriction is carried out among many people with obligations. In the case of a father who saw his eldest son holding a knife and tried to kill his younger son and stood. (19) The source of such obligations includes both the obligation to supervise the dangerous acts of others and the obligation to protect legal interests. Therefore, it brings us to think about what is the order of obligation chosen when the act of omission is characterized. If the first is the obligation to protect the interests of the law, then the law gives the father to carry out the positive act of helping his son's life rights and interests, which at least establishes the crime of intentional homicide. If the first consideration is the duty of supervision, then the father's omission is not a natural evaluation of the crime of intentional homicide for the homicide committed by his children.
Second, according to whether the legal interest is facing urgent infringement, it is to take the possibility of relief to exclude the result of the legal interest infringement into one's own hands. In other words, through domination of specific areas of infringement of legal interests, the same level of danger is reached as the result of infringement as an act. The typical case model is to abandon the old man to the door of the supermarket or the door of the government, then it can be said that the life law of the old man does not reach the level of exclusive assistance, for this, the crime of abandonment is recognized as a reasonable conclusion. On the other hand, the elderly who have the obligation to raise them are left in the deserted mountains and forests, and there is only a dead end when no one passes through them. At this time, the legal interests of the elderly can be said to have been urgently infringed, and the possibility of saving the legal interests is artificially ruled out as much as possible. This kind of "inaction" should be of the same value as the acts of "cutting people with a knife" and "poisoning people with poison" in intentional homicide, which can be said to be intentional homicide of inaction.
Third, consider the avoidability of the result according to the degree of the relationship between the legitimate rights and interests and the obligor. The possibility of avoidance of results is a prerequisite for performance as an obligation, because the law confers on an act that a person must perform as an obligation, and the performance of that obligation should be meaningful. While emphasizing the equivalence of non-real inaction, it is also necessary to ensure that the result avoids the possibility of existence in order to hold the person responsible for the inaction reasonable, otherwise it is difficult to force others. The judgment of the possibility of the result should be based on the objective material after the fact. In the case that the mother does not nurse the baby, the mother, as a guarantor, naturally has the obligation to be a guarantor. Needless to say, it may not be recognized whether the father living under the same roof can put all the responsibility on the wife because the wife does not nurse the baby. The father also has the obligation to protect the baby, and he is completely expected to perform other actions to maintain the baby's life. This expected behavior is not obstructive under the circumstances. Therefore, when the father is in a state of knowingly subjective, ignoring the behavior of his wife leads to the death of the baby, the father is also a co-offender.
In the order of performance of obligations, there is no difference in the evaluation of behavior by actors with the same source of obligations, such as two parents, and the evaluation of acts of omission may be different for actors with different sources of obligations. For example, where both the mother and the nanny witnessed the killing of a young child in their custody and did nothing. From the standpoint of the worthlessness of behavior, if a mother sees that her children have not fulfilled their rescue obligations, she cannot ask the nanny to fulfill the rescue obligations under the circumstances. Therefore, the obligations of the mother and the nanny exist in order. Although the act of the nanny violates the obligation to take care of the child as required by the contract, she cannot be expected to perform the act in such a case. The mother's omission can be established as a co-perpetrator or helper of the same crime as the perpetrator, depending on the degree of likelihood of avoidance of the result.
(II) Judgment of causality between co-perpetrators and helper offenders under non-participation
Co-perpetrators play an important role in the realization of the result in the causal relationship as offenders, and in Professor Roksin's view, the establishment of co-perpetrators is due to the behavioral domination of functions, and the cooperation between actors and people is indispensable, making the result highly possible. Thus, on the causal flow, it is similar to the multiple dangerous flows that lead to the achievement of the result plus work on the dangerous flow that leads to the direct result, and makes the power of the dangerous flow increase to the point where the result is almost certain to occur.
In the occasion of non-participation as a positive offender, the person who does not act should bear the responsibility of the positive offender, and also needs his own non-action to add power to be sure that the direct act of the offender can lead to the occurrence of harmful results in the causal flow. The question is, if the act of inaction is ostensibly "nothing", can the causal impact of inaction achieve the "almost certain" degree of merit mentioned above? A comprehensive judgment should be made in the light of the objective factors such as the conditions, location and environment of the person in the case, such as the physical defects of the person, the degree of other possibilities of exclusion of legal benefits, etc., so that the probability of avoiding the outcome reaches a determinable level.
For example, an 18-year-old man A and his friend (the same age) B had a quarrel in an alley in a busy city. The two immediately had a fierce physical conflict. At this time, B's father happened to pass by and witnessed the fight between A and B. However, thinking that it was inconvenient for him to marry and take the children again, he acquiesced in A's beating of B. When a policeman passed by, B's father lied that there was nothing unusual. After B fell in a pool of blood, A saw the situation and fled, B's father also left.
In the present case, it should be held that the acts of B's father bear the positive responsibility for intentional homicide, on the grounds that:
First, according to the scene of the case at that time, if B's father carried out positive actions, the possibility of avoiding the result could be said to be highly likely. As a passer-by in the busy area at that time, B's father could call for help and call the police to the people around him in terms of geographical environment, or in terms of personal strength, the physical fitness of middle-aged people was not necessarily inferior to that of young people who had just grown up. Therefore, he was fully capable of preventing the occurrence of death.
Second, from the perspective of intervention factors, there was only one act of homicide and father's inaction at that time, and there were no other intervention factors to interrupt the development of the causal process. The causal process created by A directly acts on the result of death and should be responsible for the result, and the father's omission violates the obligation to protect the child from harm, and it can be said that the omission is no different from the harm of the act. The causal relationship of father's behavior, from the formal point of view, is the result of the final crime with the help of the causal flow danger. In essence, the danger created by inaction also falls within the scope of the constitutive elements of the inaction of the perpetrator, and there is no situation in which the result excludes the attribution of inaction as the perpetrator.
Third, when the victim is in danger of major legal interests such as life and body, the degree of the guarantor's obligation to act should be increased. In other words, the degree of obligation of the guarantor to prevent the result should be more stringent in the case of a legal interest such as life. The inaction is based on the subjective intent of laissez-faire, and should be evaluated as a co-perpetrator in circumstances where it can prevent a dangerous outcome from occurring and deliberately does not prevent it from occurring, and interferes with factors that may salvage the legal interest, and the act of inaction is indistinguishable from the act in terms of the causal force that leads to the outcome.
Helping the offender does not need to be as strict as the co-perpetrator's mastery of the causal process, because helping itself promotes and assists the perpetrator's behavior and makes it easier to implement. In the whole process of crime, generally speaking, the helper is a marginal character, and its realization of the result is also in an indirect position. Therefore, the causal process of crime is not governed or mastered. In layman's terms, the achievement of the outcome of a crime does not depend on the act of helping the offender. The same is true in the case of non-participation. The inaction of the guarantor only promotes easier completion as the actor in the causal process.
For example, the manager of the warehouse did not take care of the warehouse as carefully as usual according to the requirements of the leader of the theft gang, thus making the goods in the warehouse successfully stolen by the gang. The warehouse manager should help the criminals. The thinking behind the analysis should be:
First, warehouse managers have a duty of care for the items in the warehouse;
Second, the warehouse manager does not have absolute control over the item, in other words, it is not certain that the entire theft plan will be successful as long as there is a manager's cooperation;
Third, although the manager does not have absolute control over the item, it plays a relative role in security. In other words, with the cooperation of the manager, the implementation of the theft plan will be easier;
Fourth, the manager did violate the obligation as a subjective intention, and the thief also carried out the theft according to the plan, the result is the success of the theft. Therefore, it can be said that managers set up to help criminals.
However, if the scene of the case is changed to "the person who keeps the goods in the warehouse has the only biological access code (such as fingerprint or facial scan, etc.) to the warehouse, it is impossible to open the door of the warehouse through other physical channels. In this case, even if the keeper is not in the warehouse location, it can be considered that it has formed absolute control. If the custodian violates the duty of conduct and allows the thief to enter and obtain the property, the custodian shall also be found to be a joint offender.
In summary, the principle of equivalence is the principle of interpretation of non-real inaction, which essentially points out the degree of closeness between the infringement of legal interests and the guarantor, and requires the causal control of inaction and the possibility of avoidance of results in the principle of equivalence. The act of omission requires the bridge of equivalence to be consistent with the degree of harm of the act of omission in order to be said to have one of the factors for the establishment of a positive offender.
In the causality judgment of omission participation, it is necessary to comprehensively consider the possibility of result avoidance and the influence of intervention factors. When the person with guarantee obligation violates the guarantee obligation, through the judgment of the objective environment, etc., when the possibility of result avoidance is relatively small, it can be said that the behavior of omission is at most an assisting behavior, which has the dominant causal relationship leading to the occurrence of the result, the causal flow of inaction is a cause of different quality and quantity, and does not establish a joint positive offender. Conversely, when the likelihood of outcome avoidance is high, it can be argued that the causal flow of action overlaps in a homogeneous and quantitative manner with the causal flow of inaction, and that the inaction is of course responsible for the outcome of the positive offense.
4. this point of view
Based on the above analysis, in the case of inaction, the application of the principle of equivalence will fill in the difference between inaction and inaction, and in the case of inaction participation as a positive offender, it is still possible to distinguish between co-perpetrators and aiding offenders from the point of view of the degree of control over the causal flow and the requirement of equivalence. The specific contents are as follows:
First, in cases where the legal interests of a person with a guarantee obligation are not prevented from being infringed, for example, in cases where a mother sees her child being killed by another person and is indifferent and eventually the child dies, a reclassification analysis should be carried out in conjunction with the degree of influence on the causal process.
First of all, the guarantor's inaction is indeed a formal violation of the obligation to act, the law has been expecting the mother to carry out some kind of relief to safeguard the child's life law interests, it has not implemented a positive act. And it witnessed their children killed, can be said to have a laissez-faire intentional psychology. However, the breach of an obligation alone does not constitute a joint perpetrate of intentional homicide.
Secondly, the principle of equivalence and the degree of control over causality need to be re-judged. When the possibility of avoiding the result is high, it is believed that the act of omission has played a major role in the realization of the result of the crime, and it can be considered as a co-offender of the crime of intentional homicide. For example, a mother who sees her child being beaten into a coma by another person and becomes indifferent, causes the other person to kill the child, even if the home is near the hospital, and does not carry out rescue actions. At this time, the mother's positive behavior can prevent the death result from happening to a great extent, but it is not implemented, which is equivalent to the degree of harm.
Therefore, the mother is a co-offender of intentional homicide. And when there is an objectively low probability of avoidance of the result, the guarantor's failure to act positively only makes the result easier or makes it difficult for others to rescue, and the guarantor should be recognized as a helper at this time. For example, if the guarantor does nothing but walk away in the face of the situation, adhering to the attitude of "looking at God and rewarding life" and thinking that "if there are passers-by to save, no one can save", the guarantor sets up the helper.
Second, in cases where the protected person is not prevented from infringing on the legal rights of a third person, such as when the father sees that his son is killing a third person and does not prevent him from doing so, he leaves directly and then the third person dies. This paper holds that the father is not guilty of intentional homicide. The reason lies in:
First, the obligation of the guarantor should be a long-term agreement formed through legal provisions or moral and industrial norms, which is the distribution of rights and obligations between the guarantor and the guarantor. Its function is to clarify the close special relationship between the guarantor and the guarantor on the one hand, and to expect the guarantor's behavior when the guarantor is infringed by legal interests on the other hand. As can be seen, the obligation of guarantee, since it is called an "obligation", is more of a requirement for the conduct of the guarantor. Therefore, the freedom of conduct of the guarantor cannot be restricted by the obligation of guarantee, and even if the guarantor has committed a harmful act, the law cannot impose on the guarantor the consequences of the act belonging to the guarantor through the obligation of guarantee. The obligation of guarantee is already a "burden" for the guarantor ". As for the violation of the duty of supervision leading to the establishment of other crimes by the guarantor, it does not matter.
Second, from the perspective of the degree of dominance of causality, since the death of the third person is not caused by the implementation of the father himself, there is no causality to the death result. The death result is directly controlled by the actor, and the father has no obligation to rescue the third person who died. If someone thinks that "if the father prevented his child from carrying out the act at that time (if the father did not act inaction at that time), then the death result would not have occurred", so as to determine that there is a causal relationship between the father and the death result. Then the misunderstanding here is that the use of the conditional relationship of no A and no B to identify cause and effect makes the chain of cause and effect infinitely expand, and there is still a misunderstanding of the condition of inaction A, because the "inaction" in this case cannot be called "inaction" in the sense of criminal law, and whether the father's behavior is harmful is doubtful, not to mention acts of omission under the concept of harmful acts. Furthermore, what is the basis for requiring the guarantor to have a duty of protection to a third party in terms of the obligation of guarantee to the guarantor?
Third, the order of performance of obligations exists, mainly in terms of guarantors with different sources of obligations. Standing on the position that the act is worthless, if the actor with a higher degree of obligation does not perform the obligation, he cannot require the actor with a lower degree of obligation to continue to perform. The behavior of the two should be evaluated differently.
References:
(1) Shanghai No.3 Intermediate People's Court (2018) Shanghai No.03 Criminal Judgment No.20.
(2) Zhejiang Haiyan County People's Court 2018 Zhejiang 0424 Criminal Judgment No. 346.
(3) See [Japan] Otani: General Theory of Criminal Law, translated by Li Hong, Law Publishing House, 2003, p. 344.
(4) See [German] Hans Heinris Yesek Thomas Weigent: German Criminal Law Textbook (General Theory), translated by Xu Jiusheng, China Legal Publishing House, 2001, p. 774.
(5) See Chen Jialin: "Research on the Joint Offender of Inaction", Journal of Jinan (Philosophy and Social Sciences Edition), No. 5, 2007.
(6) See Li Hong: "Criminal Liability for Not Preventing Others from Crimes", Chinese Law, No. 4, 2020.
(7) See Li Hong: "Criminal Responsibility for Not Preventing Others from Crimes", in Chinese Law, No. 4, 2020.
(8) See Yao's poem, "The Distinction between Positive and Accomplice of Inaction: Practical Discovery and Theoretical Shaping", Jurist, No. 4, 2020.
(9) See Wen Dengping, "The Nature of Inaction in Infringement of Other People's Legal Benefits by Inaction-The Distinction between Inaction and Helping Offender", Jurist, No. 4, 2016.
(10) See Chen Jialin: "The Trend of Thought and Change of Foreign Criminal Law Theory", Chinese People's Public Security University Press, 2017 edition, p. 505.
(11) See Sun Lihong: "On Inaction Participation in Joint Crimes", Jurist, No. 1, 2013.
（(12) See [Japan] Matsugong Xiaoming: Lecture Notes on General Theory of Criminal Law, translated by Qian Ye Liu, China University of Political Science and Law Press, 2013, p. 206.
(13) See Liu Lingmei: "Research on Helping Critics", Wuhan University Press, 2003 edition, p. 150.
(14) See [Japan] Shenshan Minxiong: "On Accomplice of Inaction", Cheng Wentang, 1994 edition, p. 177; Chen Jialin: "Research on Co-perpetrators", Wuhan University Press, 2004 edition, p. 270; Sun Lihong: "On Inaction Participation in Joint Crimes", published in Jurist, No. 1, 2013.
(15) See Yao's poem, "The Distinction between Positive and Accomplice of Inaction: Practical Discovery and Theoretical Shaping", in Jurist, No. 4, 2020.
(16) See Ouyang Benqi, "On the Distinction between Oission as a Positive Offender and Accomplice", in Chinese and Foreign Law, No. 3, 2015.
(17) See Xu Naiman: "On the Status of Guarantor of Inaction of True Inaction", translated by Chen Xi, "Criminal Law and Criminal Justice" (Volume 1), Law Press, 2013, p. 69.
(18) There is debate as to whether the principle of interpretation of equivalence as a non-genuine omission is as independent an element as an obligation. In this paper, the view that the non-independent element of equal value is not to deny the judgment of equal value. In the process of judging whether it is true that there is no real omission or whether it has equal value with the act, the following ideas are generally followed: first, whether there is an objective harmful result in the objective aspect, whether the act is a harmful act, and then whether there is intentional negligence in the subjective aspect, and then whether the causal relationship between the two can be attributed. In the process of judging the attribution of the result, due to the particularity of the act of non-real omission, we should first consider whether there is an obligation to act, and then consider whether it is equivalent when there is an obligation to act. But it is in this process that people's thinking process is often the same judgment of fact and value, and equal value is actually included as an explanatory principle and an explanatory bridge. See Zhang Mingkai: Criminal Law (5th Edition), Law Press, 2016, p. 161.
(19) See Du Wenjun and Chen Hongbing: "Inaction as an Accomplice and Obligation to Prevent Crime", edited by Zhao Bingzhi: "Criminal Law Series" (Volume 19), Law Press, 2009, p. 247.
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