Point of View | The Art of Criminal Defense: How to argue that it constitutes an accessory in a joint crime?
Published:
2024-05-16
In joint crime cases, the co-perpetrators may all be the principal offenders, but they cannot all be accomplices. Generally speaking, there is always a master and a slave. It is therefore particularly important to distinguish between accessory and principal offenders when dealing with cases of joint crime.
In joint crime cases, the co-perpetrators may all be the principal offenders, but they cannot all be accomplices. Generally speaking, there is always a master and a slave. It is therefore particularly important to distinguish between accessory and principal offenders when dealing with cases of joint crime.
1. on the distinction between principal and accessory
The distinction between principal and accessory should be determined by taking into account the status of the joint crime, the degree of participation, the circumstances of the crime and the size of the effect on the harmful result.
The principal offender plays a major role in the joint crime, including putting forward his intention in advance, acting as a director, gathering and inviting others, and giving advice; when committing a crime, he actively participates, plays the leading role, and often directs and coordinates the actions of others, and the crime is serious. Or directly cause serious harmful consequences; some afterwards also plan to cover up crimes, destroy crime evidence, and evade punishment.
The accomplice plays a secondary or auxiliary role in the joint crime. Objectively, an accessory acts as a supporting role, does not directly commit an act that constitutes an objective element of a specific crime, helps to prepare and commit a crime, and creates favorable conditions and environment for a joint crime, or although he directly participates in the commission of a crime, the crime is relatively minor and does not directly cause harmful consequences or the harmful consequences are not serious; subjectively, when committing a crime, he has a common criminal intention with other co-offenders, however, it is less subjective and vicious to obey the arrangement, instruction and command of the principal offender. Thus, the accomplice did not dominate the criminal act, but only participated in the criminal activity to a certain extent.
There are two kinds of accessory, one is the accessory who plays a secondary role in the joint crime, and the other is the accessory who plays an auxiliary role.
The Argument Path of 2. Constituting an accomplice
Argumentation directions that play a secondary role in joint crime:
1. The intention to commit a joint crime plays a secondary role or is temporary;
(2) did not participate in the specific details of the conspiracy in the joint crime;
3. Failure to assemble a joint crime, not actively participating but being invited or employed to participate in a joint crime;
4, did not plan, command joint crime, in the specific implementation of the crime in the process of being dominated, instructed in the position;
5. Not the main perpetrating offender in the joint crime, and the act carried out by him plays a secondary role rather than a key role in the implementation and result of the joint crime;
6, is not the main profit of the joint crime, did not participate in the distribution of stolen goods or profit less;
7. In the joint crime of identity crime, the perpetrator can only be subordinate to the principal offender with identity because he does not have the identity stipulated by law.
The direction of the argument that plays an auxiliary role in the joint crime:
(1) provide information for joint crime;
2, for the joint crime to strengthen the intention;
3. To create conditions and provide tools for joint crime;
4. In a joint crime, before the perpetrator begins to commit the crime, he or she forms an agreement with him or her and promises to provide assistance in transporting, conceding or selling stolen goods;
5. In a joint crime, only the act of lookout is carried out.
Sentencing of 3. accessory
As an important sentencing circumstance, accessory plays a vital role in the sentencing of the defendant. Article 27 of the "the People's Republic of China Criminal Law" stipulates: "An accomplice who plays a secondary or auxiliary role in a joint crime shall be given a lighter, mitigated punishment or exempted punishment." The "Guiding Opinions of the Supreme People's Court on Sentencing for Common Crimes" stipulates: "For accomplices, 20%-50% of the benchmark sentence can be reduced; if the crime is minor, more than 50% of the benchmark sentence can be reduced, and even the punishment can be exempted according to law."
The accessory defense, once successful, can achieve a substantial reduction of the client's sentencing sentence, is an important path for lawyers to achieve effective defense.
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