摘要
共谋共同正犯理论是从判例发展而来,宗旨是为使犯罪的共谋者中未分担实行行为的幕后大人物受到更重的处罚(即作为正犯处罚)。目前这种理论已被日本刑法学界多数学者所接受,也得到许多德国学者的支持。但是,将未分担实行行为者作为正犯来处罚或评价,违背区分正犯与共犯的初衷,会动摇区分制的根基。我国采取不区分正犯与共犯的单一正犯体系,刑法对作为犯罪参与特殊类型的共同犯罪及其处罚原则有明文规定,将有严重社会危害性和危险性的共谋犯罪案件,认定为共同犯罪,根据共谋者在犯罪之中所起作用的大小分为主犯或从犯,给予轻重不同的处罚,能确保参与者之间处罚均衡合理,根本不需要引进共谋共同正犯论。
The theory of collusive co-principal offender is derived from judicial precedents.It aims at imposing heavier punishment（that is,punishing them as perpetrators）on the conspirators who did not conduct the perpetrating act but played a significant role behind the scenes.At present,this theory has been accepted by most scholars in Japanese criminal law circle and also supported by many German scholars.However,punishing the offender who did not conduct the perpetrating act as a perpetrator contradicts the original intention of distinguishing perpetrators from accessories,and it will undermine the foundation of dividing system of crime participation.The unitary system of complicity,which Chinese criminal law has adopted,does not divide perpetrators and accessories.The criminal law clearly stipulates the joint offence,which is the special type of criminal participation,and the principle of punishment.Identifying the conspiracy which has nature or dangers of harming society as joint offence,and dividing the conspirators into principles and accomplices,and punishing them respectively,can ensure that the punishment between participants is balanced and reasonable.There is no need to introduce the theory of collusive co-principal offender.
出处
《法学评论》
CSSCI
北大核心
2018年第1期75-88,共14页
Law Review
关键词
共谋
共同正犯
共同犯罪
单一正犯
Conspiracy
Co--principal Offender
Joint Offence
Unitary System of Complicity
