我国对合犯刑罚配置研究

发布时间：2018-03-29 12:16

本文选题：对合犯　切入点：刑罚配置　出处：《昆明理工大学》2017年硕士论文

【摘要】：对合犯在德、日刑法理论中是必要共犯的一个下位概念,但其在我国刑法理论中的地位却又争议,其并不完全属于规范层面上的共同犯罪,故而在对合犯问题上需要考虑共同犯罪规则的适应性问题。近几年持续的反腐热潮得到广泛的民意支持,但是作为非典型对合犯的行贿罪与受贿罪在实际判决中往往差异极大,差异的原因固然有很多,其中亦不乏合理之处,但是并不利于贿赂犯罪的整体治理。以此为引,根据对合犯的概念和特征,进而探究对合犯刑罚配置差异的原因,为今后对合犯的立法及司法工作提供思路,为对合犯双方的均衡量刑提供思路。文章正文一共分为三个部分,另附引言与结语。引言中主要介绍对合犯中存在法定刑相当和法定刑差异的现状,引出对合犯刑罚配置差异这一问题;同时梳理了对合犯的概念、分类等为下文的研究做铺垫。第一部分,对合犯的几个基本问题。该部分主要明确对合犯的基本概念、及特征,强调对合主体的身份、行为及意思联络,认为对合犯是指具有对应地位的双方主体在具有共同意思联络下相向而为的两个相互依存的行为而构成的犯罪;另从我国犯罪构成和共同犯罪的含义论证我国对合犯和共同犯罪的关系,认为我国对合犯是事实层面上的共同犯罪。第二部分,对合犯的分类及存在的问题。该部分将我国《刑法》中的对合犯根据刑罚不同分为同罪同罚、异罪异罚、只罚一方三类,根据行为内容不同分为买卖型对合犯、贿赂型对合犯、其他对合犯三类,并简要分析不同类型的对合犯,指出我国对合犯存在立法模式混乱、用词不统一的问题。第三部分,对合犯的立法规定和司法认定。建议在今后彼此俱罚的对合犯的立法中避免采用异罪异罚的方式立法,若仍采用异罪异罚的方式则在对合双方的犯罪成立条件和量刑幅度尽量相当;在我国现有刑法框架下对合犯的量刑尽量相当,在异罪异罚的对合犯的量刑时应当先确定对合双方的行为是两方共同的刑事责任范围,然后根据双方在对合犯罪中的地位和作用确定各自刑事责任程度。
[Abstract]:Adversarial offense is a lower concept of necessary accomplice in the criminal law theory of Germany and Japan, but its position in the criminal law theory of our country is controversial, and it does not belong to the joint crime on the normative level. Therefore, it is necessary to consider the adaptability of joint crime rules in the problem of adversarial offense. In recent years, the continuous anti-corruption boom has been widely supported by public opinion, but the crime of bribery and the crime of accepting bribes, as atypical adversaries, often differ greatly in actual judgments. Of course, there are many reasons for the differences, among which there are many reasonable ones, but they are not conducive to the overall management of the crime of bribery. As a guide, according to the concept and characteristics of the commutative offense, the reasons for the difference in penalty allocation of the commutative offense are explored. To provide ideas for the legislative and judicial work in the future, and for the balanced sentencing of both parties. The text of the article is divided into three parts. Introduction and conclusion. The introduction mainly introduces the current situation of the legal penalty equivalence and legal penalty difference in the commutative offense, leads to the problem of the difference in penalty allocation of the adversarial offense, and combs the concept of the adversarial offense. The first part, several basic problems of involutive offense. This part mainly defines the basic concept and characteristics of involutive crime, emphasizes the identity, behavior and meaning connection of the involutive subject, It is believed that the dual offense is a crime constituted by two interdependent acts of the subject of both parties with corresponding status under the connection of common meaning. In addition, from the meaning of the constitution of crime and the joint crime in our country, the author proves the relationship between the adversarial crime and the joint crime in our country, and thinks that the adversarial crime in our country is a joint crime on the level of fact. The second part, In this part, according to different penalties, the adversaries in the Criminal Law are divided into the same punishment for the same crime, different punishment for different crimes, only three types of punishment for one party, and according to the different content of the behavior, it can be divided into two types: the transactional offender, the bribe type commutator. There are three types of other invocations, and a brief analysis of different types of adversaries, pointing out that there is confusion in the legislative model and inconsistent words in China's commutative offense. Part three, Legislative provisions and judicial cognizance of dual offenders... It is recommended that in the future legislation on commutative offenders punished by each other, legislation should be avoided in the form of different penalties for different crimes, If we still adopt the method of different punishment for different crimes, we will try our best to match the conditions of establishing the crime and the range of sentencing of the two parties; under the existing criminal law framework of our country, the sentencing of the adversaries will be as similar as possible. In the sentencing of the common-offender with different punishment for different crimes, the behavior of the two parties should be determined as the common scope of criminal responsibility, and then the degree of criminal responsibility should be determined according to the position and function of the two parties in the dual crime.
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392

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