论片面共犯的性质及其存在形态

发布时间：2018-03-18 13:44

本文选题：片面共犯　切入点：意思联络　出处：《兰州大学》2014年硕士论文　论文类型：学位论文

【摘要】：片面共犯的性质及其存在形态一直是理论界争论的焦点。通过对本文两个案件的分析,笔者发现,学者们对不知情的实行犯仅就自己的行为负刑事责任而不构成共同犯罪的观点都没有异议,但类似于案件中乙和顾某的行为(单方故意协力者)是否属于片面共犯以及片面共犯存在哪几种形态,在中外刑法理论上都存在着争论。对于片面共犯这种应当以刑法来规制的犯罪行为,不仅缺乏对其惩处的充分的理论支撑,且在司法中也没有明确的处罚片面共犯的法律规定。本文由四部分组成：第一部分,对本文中的两个案件情况进行介绍,并对案件的争议焦点进行归纳。案件一中当事人乙涉及典型的片面共同正犯,案件二中当事人顾某的行为涉及不作为与片面共犯的结合即不作为的片面共犯,这两个案件的争议点引出了刑法学界具有争议的片面共犯问题；第二部分,对现有片面共犯性质的理论进行梳理的同时,对学者提出的其他解决片面共犯问题的单独犯说、间接正犯说及从犯说进行分析,认为片面共犯符合共同犯罪的性质,应当将其纳入共同犯罪的范畴；第三部分,对片面共犯的存在形态进行探讨。片面共犯的存在形态不包括片面组织犯与片面教唆犯,其存在形态有三种,即片面共同正犯、片面帮助犯与不作为的片面共犯并对其进行观点论证；第四部分,通过对国内外立法与判例对片面共犯的处罚规定,对片面共同正犯、片面帮助犯及不作为片面共犯的处罚进行讨论；认为能够妥善解决片面共犯的最好途径是将片面共犯当做共同犯罪的一种特殊形态；最后回归案件,用前文分析的结论对案件中相关当事人的行为做出定性,以达到解决实际问题的目的。
[Abstract]:The nature and existence of one-sided accomplice have always been the focus of controversy in the theoretical circle. Through the analysis of the two cases in this paper, the author finds that, Scholars have no objection to the view that unwitting perpetrators are criminally responsible only for their own acts and do not constitute joint crimes, But whether the behavior of B and Gu in the case (unilateral intentional collaborator) belongs to one-sided accomplice and which forms of one-sided accomplice exist, There are arguments in the theory of criminal law both at home and abroad. The one-sided accomplice, which should be regulated by criminal law, is not only lack of sufficient theoretical support to punish it, but also has no clear legal provisions to punish one-sided accomplice in the administration of justice. This paper consists of four parts:. In the first part, the author introduces the two cases in this paper, and sums up the dispute focus of the case. In case 1, party B involves a typical one-sided accomplice principal offender. In case two, the behavior of Gu Mou involves the combination of omission and one-sided accomplice, which leads to the controversial issue of one-sided accomplice in the field of criminal law. In the second part, while combing the existing theory of one-sided accomplice, the author analyzes the other theories of one-sided accomplice proposed by scholars, such as individual crime, indirect principal crime and accomplice. The author holds that one-sided accomplice accords with the nature of joint crime and should be included in the category of joint crime. The third part discusses the existence of one-sided accomplice. The existence of one-sided accomplice does not include one-sided organized crime and one-sided abettor. There are three forms of existence of one-sided accomplice, that is, one-sided co-principal offender. The one-sided accomplice of one-sided aiding crime and omission and the argument of its viewpoint; Part 4th discusses the punishment of one-sided accomplice, one-sided accomplice, one-sided aiding and non-acting accomplice through the punishment of domestic and foreign legislation and precedents on one-sided accomplice. The best way to solve one-sided accomplice is to regard one-sided accomplice as a special form of joint crime. Finally, return to the case, with the conclusion of the previous analysis of the case related to the behavior of the parties to make qualitative, in order to achieve the purpose of solving practical problems.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914

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