What is an indirect recidivist? What does it mean to commit it indirectly

Indirect recidivism is one of the important issues in criminal law theory, and criminal law scholars attach great importance to the study of principal offenders and accomplices in the criminal ethics part. Indirect recidivism is also indirect recidivism.

It is one of the most common questions of every criminal law scholar. Regarding the concept of indirect recidivism, ancient and modern Chinese and foreign scholars have their own definitions, which are divided into broad definitions and narrow definitions: 1. Broad definition:

The so-called indirect principal offender refers to the use of another person as a tool to commit a crime. "Indirect principal offense in criminal law refers to the crime of using another person as a "tool" to carry out the acts constituting the elements. The above two broad definitions, which define indirect principal offenders as "criminal circumstances" or "crimes", are concepts with a broad scope, including both criminal acts and perpetrators (exploiters).

2 Narrow definition: In the narrow definition, most scholars define an indirect principal offender as the perpetrator of a crime. For example, "an indirect principal offender refers to a person who uses another person as a 'tool of crime' to achieve the constituent elements of a crime in order to carry out the act that should constitute the constituent elements."

Han Zhongmo, a scholar from Taiwan, China, said: "A person who takes advantage of the behavior of a person who has no intention or capacity for responsibility, or takes advantage of the non-illegal behavior of another person to commit his own crime, is commonly known as an indirect principal offender." "Indirect principal offender usually refers to a person who takes advantage of the acts of others to commit his own criminal acts.

All three concepts define an indirect principal offender as the perpetrator of the crime. For example, Chinese scholar Lin Wei defines an indirect principal offender as an act that does not directly satisfy the constituent elements, but commits a harmful act that meets the constitutive elements through a person who has a joint criminal relationship with him that does not constitute a specific act because of certain circumstances.

It can be seen from this that different scholars have different views on the concept of indirect recidivism. However, scholars generally recognize the instrumentality of the exploiter, the intent of the exploiter, and the conformity of the constitutive elements. The concept of indirect principal offender should be broadly defined, that is, the user himself does not directly carry out an act that fully meets the constitutive elements, but uses another person as a tool to commit a crime.

The so-called indirect principal offender is a person who uses another person as a tool to allow others to actually commit a crime, which is the concept of German criminal law. There is no such statement in our country. A common circumstance is that an instigated person who does not have the capacity for criminal responsibility to commit a crime, and the instigator is an indirect principal offender.

Indirect principal offender, also known as "indirect perpetrator". refers to a person who uses a person who is incapable of responsibility or a person who has no criminal intent to carry out criminal acts with his or her own criminal intent, in order to achieve his or her own criminal goals. For example:

the use of mentally ill persons or children under the age of criminal responsibility to commit crimes; Committing criminal acts by using an unwitting person, etc. There is no direct provision for indirect principal offenses in China's criminal law. Indirect principal offender is a special case of instigation, that is, instigating a person who has not reached the age of criminal responsibility or does not have criminal responsibility to commit a crime, and at this time it is not an instigator but becomes an indirect principal offender.

Because he alone bears criminal responsibility. An indirect principal offender is the principal offender if he plays a major role in the joint crime; If the abettor plays a secondary role in the joint crime, then he is an accessory.

Legal basis: Article 26 of the Criminal Law of the People's Republic of China stipulates that a person who organizes or leads a criminal group to carry out criminal activities or plays a major role in a joint crime is the principal offender.

A relatively fixed criminal organization formed by three or more persons for the purpose of jointly committing a crime is a criminal group.

The ringleaders who organize or lead a criminal group are to be punished in accordance with all the crimes committed by the group.

Principal offenders other than those provided for in paragraph 3 shall be punished in accordance with the dispersion or organization or command of all crimes in which they participated.

Article 29 of the Criminal Law of the People's Republic of China stipulates that whoever instigates others to commit a crime shall be punished in accordance with his defense in the joint crime. Those who instigate a person under the age of 18 to commit a crime shall be given a heavier punishment.

If the person instigated did not commit the crime instigated, the punishment for the instigator may be mitigated or mitigated.

Legal analysis: 1. The difference lies in the different subjects who commit criminal acts. 2. A direct principal offender is an actor who directly commits the constitutive elements of a crime as provided for in the laws of our country, while an indirect principal offender is an actor who does not directly commit a criminal act, but usually uses others as a tool to carry out a criminal act in order to achieve his own criminal goals.

3. Indirect principal offenders are not the same as instigators. In indirect principal offenders, the person who uses another person to commit the crime and the person who commits the crime are not joint offenders.

Legal basis: The Criminal Law of the People's Republic of China.

Article 232:Whoever intentionally kills a person shall be sentenced to death, life imprisonment, or imprisonment for a period of not less than 10 years; where the circumstances are more minor, the sentence is between three and ten years imprisonment.

Article 234 Whoever intentionally injures the body of another person shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release. Whoever commits the crime in the preceding paragraph and causes serious injury shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, causing death, or causing serious injury by especially cruel means, causing serious disability, to be sentenced to fixed-term imprisonment of not less than one year, life imprisonment, or death. Where this Law provides otherwise, follow those provisions.

The principal offender is essentially governed by the facts of the crime, and the direct principal offender is dominated by the criminal act. Indirect recidivism, symmetry of "direct recidivism". Also known as "indirect perpetrators".

refers to a person who, with his or her own criminal intent, uses a person who is incapable of responsibility or a person who has no criminal intent to commit a criminal act in order to achieve his or her own criminal purpose.

For example: the use of mentally ill persons or children under the age of criminal responsibility to commit crimes; Committing criminal acts by using an unwitting person, etc. In the criminal law theories of some Western countries, indirect principal offenders are punished as principal offenders, while those who are exploited are not guilty.

The criterion for distinguishing between an indirect principal offender and an accomplice lies in whether the exploited person is a normative obstacle to the realization of the crime. Considering the legal order, if a person with the possibility of expectation is used as a tool to commit a crime, it becomes a normative obstacle to the realization of the crime.

On the other hand, if the user does not have the possibility of expectation and cannot become a normative obstacle, the user can use others to commit a criminal act as if he or she had committed a crime himself, which is sufficient to determine the positive nature of his or her act.

The difference between a direct principal offender and an indirect principal offender is as follows:

1. The subject is different, the direct principal offender is the perpetrator who directly commits the constitutive elements of the crime as provided by law, while the indirect principal offender is the person who does not directly commit the criminal act;

2. The conduct is different, the direct principal offender will directly exercise the crime, while the indirect principal offender only plays an auxiliary act such as instigation, and does not directly commit the crime.

1. The types of indirect recidivism are as follows:

1. Exploiting incapable persons to commit crimes;

2. Taking advantage of the negligence or ignorance of others to commit crimes.

2. The criminal liability of the instigator is as follows:

1. Where the instigated person commits the crime of being instigated, the instigator shall be punished in accordance with his role in the joint crime. where it has played a major role, it is to be punished in accordance with the principle of punishment for the principal offender, and where it only plays a secondary or auxiliary role, it is to be punished in accordance with the principle of punishment for accomplices;

2. If the instigator does not commit the crime of being instigated, it still constitutes an independent instigator because the instigator subjectively has the intention to instigate and objectively carries out the act of instigation. However, considering that the act of instigation did not cause actual harm, the punishment for such instigators may be mitigated or commuted;

3. Those who instigate a person under the age of 18 to commit a crime shall be given a heavier punishment.

In short, there is a clear distinction between a direct principal offender and an indirect principal offender, but both are criminal acts, and if the crime of abetting is involved, it is necessary to bear more serious legal responsibility, including fixed-term imprisonment.

"Indirect principal offender" refers to a person who, with his or her own criminal intent, uses a person who is incapable of responsibility or a person who has no criminal intent to commit a criminal act in order to achieve his or her own criminal purpose. Abettor refers to the use of persuasion, threats, or other methods to instill one's criminal intent into a person who does not have criminal intent.

Legal basis

Article 232 of the Criminal Law of the People's Republic of China stipulates that whoever intentionally kills a person shall be sentenced to death, life imprisonment or fixed-term imprisonment of not less than 10 years; where the circumstances are more minor, the sentence is to be between three and ten years imprisonment. Article 234 Whoever intentionally injures the body of another person shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release. Whoever commits the crime in the preceding paragraph, causing serious injury, is to be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death or seriously injures a person by especially cruel means, causing serious disability, is to be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment, or death.

Where this Law provides otherwise, follow those provisions.