The Social Functional Approach to the Imputation of Complicity—Taking Günther Jakobs's Complicity Theory as the Entry Point
Currently,China's theory of complicity has reached a historic crossroads.To move beyond disagreements and out of the maze,it is necessary to employ an analytical ap-proach based on social function.We should analyze the internal normative structure of complici-ty by taking a unified obligation-centered theory as the starting point.Multiple people comple-ting a task is a common social phenomenon,and complicity is just one form of it.Therefore,in the imputation of complicity,it is necessary to connect it with other social phenomena.The German jurist Günther Jakobs proposed a unified theory of criminal imputation based on social function,which has significant implications for the study of complicity in China.The social function of the system of complicity as a form of criminal imputation is to define the boundaries of the imputation of participants(including the principal and the accomplice),guide people's behavior,confirm the validity of norms,and ensure the survival of society.In the imputation of complicity,we should adopt a concept of substantive offense,adhere to the premise of imputa-tion that wrongness required by an offense is fulfilled,and take the incidental obligation as the basis,so as to thoroughly implement the principle of subordination of accomplices.The realiza-tion of the elements of the offense should be imputed to each participant,not depending on the desires of the participant himself,but objectively according to the method of determining unac-ceptable risks.Correspondingly,we should abandon the naturalistic causality as the main meth-od of determination,because using causality to establish act-dominion and shared-intent and be-havioral sharing of participants and thus determining the scope of imputation is itself a reversal of cause and effect.By not making qualitative distinctions within imputation,we can reveal that the forms of complicity are open rather than closed.The view of"stratification not within but outside imputation"aligns with China's mainstream double-layer differentiation system(or two-layer distinction system),whereby the categorization of roles and the categorization of functions are not at the same level;the former aims to solve the problem of conviction(imputation),while the latter aims to solve the problem of sentencing.At the first level,the wrongness re-quired by an offense is holistically imputed to each participant according to the subordination of accomplices and the combined division of labor,and at the second level,the principal(or chief culprit,core offender)and the accessory are further determined among participants imputed at the first level.This is a research approach that transcends the opposition between the unitary perpetrator model and the differentiation model(or unitary system and dualist system);moreo-ver,it can well explain the practice of identifying abettors(generally)and aiders(exceptional-ly)as principals,and some perpetrators as accessories.
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