正犯与主犯关系辨正

发布时间：2018-05-20 21:56

本文选题：共同犯罪 + 正犯　；参考：《法学》2016年06期

【摘要】：正犯与主犯是共同犯罪理论中的两个核心概念。就两者之间的关系,我国刑法理论中存在交叉型与重合型两种模型,但是,这两种模型赖以存在的理论基础均有缺陷。以违法与责任为中心,先判断参与人在客观违法层面上的作用大小,以此区分共犯与正犯,在具备多个正犯即共同正犯的场合,再根据主观责任的大小进一步区分出主犯与从犯,这一递进型正犯、主犯关系才是两者之间的应然关系。递进型正犯、主犯关系不仅具有体系整合功能,而且具有指导量刑功能。
[Abstract]:Principal offender and principal offender are two core concepts in the theory of joint crime. In terms of the relationship between the two models, there are two kinds of models in the theory of criminal law in our country. However, the theoretical basis on which the two models are based has defects. Taking the violation and responsibility as the center, we first judge the role of the participant on the level of objective violation, so as to distinguish the accomplice from the principal offender, and on the occasion where there are many principal offenders, that is, joint principal offenders, Then, according to the size of subjective responsibility, the principal offender and the accomplice are further distinguished, and the principal offender relationship is the proper relationship between the two types of principal offender. Progressive principal offender relationship not only has the function of system integration, but also has the function of guiding sentencing.
【作者单位】：山东大学法学院;
【分类号】：D924

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