胁从犯法律性质研究
发布时间：2018-08-28 06:59
【摘要】：胁从犯的法律性质确定是胁从犯理论研究的基础，在如何认定胁从犯或者在什么情况下能援引胁从犯的规定来从宽量刑，胁从犯如何量刑等一些列问题都需要建立在对胁从犯法律性质正确认识基础上。我国刑法理论通说按作用标准划分了主犯、从犯、胁从犯三种法定的独立共犯人，但长期以来，无论是理论上还是实践上，将胁从犯作为独立共犯人种类却饱受诟病，理论上无法完全解释胁从犯作为独立共犯人所存在的一系列问题，不过，否定胁从犯独立共犯人的法律性质，同样会导致罪刑失衡的难题。这使得在理论上，认定胁从犯为独立共同犯罪人类型将使共犯体系出现逻辑漏洞，而在实践中否定胁从犯的独立共犯人属性而认为胁从犯属于一种量刑情节将引起量刑实质上的不公正。在二者之间寻求平衡，即成功避免胁从犯理论体系上的逻辑障碍，又能满足在胁从犯适用时罪责刑相当，不仅是给胁从犯科学合理的法律性质归位，更是构建和谐的犯罪论体系所不能避免的问题。基于上述理由，本文从解释论的角度出发，分别站在通说和反对者的立场，依次分析两种不同学说之间的利弊，力图寻找通说和反对说的契合点，合理解释胁从犯的法律性质。并且提出，如果我国刑法在既有的解释路径无法妥善解决胁从犯的法律性质定位时，就必须直面现行的立法缺陷，从立法论的角度寻找解决方法。 本文共四章，第一章为胁从犯的概述，本章在介绍胁从犯概念及由来的基础上，，剖析胁从犯中“胁从”的本质以及其从宽处罚的理论依据，以求在介绍胁从犯法律性质之前对本文所探究的胁从犯有一个内涵和外延上的界定，并引出胁从犯法律性质争议的两种学说。 第二章重点介绍了胁从犯的独立共犯人属性，分别从对其现行法依据和归位缘由进行深入分析，再介绍这种学说所面临的质疑，总结评析两者的理论支点，从而得出笔者对胁从犯法律性质通说的看法。 第三章作为第二章的对立观点，通过介绍了域外的立法例和刑事政策的变迁为胁从犯作为量刑情节提供参考，并对胁从犯作为量刑情节的法律性质进行利弊分析。 第四章为前文讨论的胁从犯适用困境寻求出路，在现行法还未修改的无奈情况下提出了胁从犯制度功能的实现方式，提出一系列解决方案；而在立法机会成熟时，胁从犯的修改应该被提上日程。
[Abstract]:The determination of the legal nature of the coerced offender is the basis of the theoretical study of the coerced offender. In how to identify the coerced offender or under what circumstances the provisions of the coerced offender can be invoked to give lenient sentencing. Some problems, such as how to sentence the accomplice under duress, should be based on a correct understanding of the legal nature of the accomplice. The general theory of criminal law in our country divides three kinds of legal independent accomplices according to the function standard. However, for a long time, whether in theory or in practice, the category of accomplice as independent accomplice has been criticized. Theoretically, it is impossible to fully explain a series of problems existing in coerced accomplices as independent accomplices. However, denying the legal nature of independent accomplices of coerced accomplices will also lead to the problem of unbalance between crime and punishment. This makes it possible in theory to identify the accessory offender as an independent co-offender type, which will make the complicity system appear logical loophole. In practice, the author denies the independent accomplice of the accomplice and thinks that the subjugated offender belongs to a kind of sentencing circumstances, which will lead to the substantive injustice of sentencing. To seek a balance between the two, that is, to successfully avoid the logical obstacles in the theoretical system of coerced crime, and to satisfy the fact that the crime and punishment are equal in the application of the coerced offender, is not only a scientific and reasonable legal arrangement for the coerced offender. It is also a problem that can not be avoided by constructing a harmonious criminal theory system. Based on the above reasons, this paper analyzes the advantages and disadvantages of the two different theories from the perspective of interpretation theory and opponents respectively, and tries to find out the convergence point between the general theory and the opposition theory, and to explain the legal nature of the accessory crime under duress in a reasonable way. And it is pointed out that if our criminal law can not properly solve the legal nature of coerced offender in the existing interpretation path, we must face up to the current legislative defects and look for the solution from the angle of legislative theory. There are four chapters in this paper. The first chapter is an overview of coerced crime. On the basis of introducing the concept and origin of coerced accomplice, this chapter analyzes the essence of coerced accomplice and the theoretical basis of its lenient punishment. In order to introduce the legal nature of coerced accomplice, there is a connotation and extension of the definition of subjugation, and two theories about the legal nature dispute of coerced accomplice are introduced. The second chapter mainly introduces the independent accomplice attribute of the accomplice, analyzes the basis of its current law and the reason of its return respectively, and then introduces the doubts faced by this theory, and summarizes and comments on the theoretical fulcrum of the two theories. From this, the author's opinion on the legal nature of subjugated crime is discussed. The third chapter as the opposite point of view of the second chapter, through the introduction of extraterritorial legislative cases and the changes of criminal policy to provide a reference for the threat offender as the sentencing circumstances, and to analyze the legal nature of the subjugated offender as the sentencing circumstances of the pros and cons. The fourth chapter is to find a way out for the dilemma of the servile offenders discussed above. In the situation that the current law has not yet been amended, the author puts forward the ways to realize the function of the system of coerced offenders, and puts forward a series of solutions; when the legislative opportunity is ripe, the fourth chapter puts forward a series of solutions. The modification of the accomplice should be put on the agenda.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
本文编号：2208639
[Abstract]:The determination of the legal nature of the coerced offender is the basis of the theoretical study of the coerced offender. In how to identify the coerced offender or under what circumstances the provisions of the coerced offender can be invoked to give lenient sentencing. Some problems, such as how to sentence the accomplice under duress, should be based on a correct understanding of the legal nature of the accomplice. The general theory of criminal law in our country divides three kinds of legal independent accomplices according to the function standard. However, for a long time, whether in theory or in practice, the category of accomplice as independent accomplice has been criticized. Theoretically, it is impossible to fully explain a series of problems existing in coerced accomplices as independent accomplices. However, denying the legal nature of independent accomplices of coerced accomplices will also lead to the problem of unbalance between crime and punishment. This makes it possible in theory to identify the accessory offender as an independent co-offender type, which will make the complicity system appear logical loophole. In practice, the author denies the independent accomplice of the accomplice and thinks that the subjugated offender belongs to a kind of sentencing circumstances, which will lead to the substantive injustice of sentencing. To seek a balance between the two, that is, to successfully avoid the logical obstacles in the theoretical system of coerced crime, and to satisfy the fact that the crime and punishment are equal in the application of the coerced offender, is not only a scientific and reasonable legal arrangement for the coerced offender. It is also a problem that can not be avoided by constructing a harmonious criminal theory system. Based on the above reasons, this paper analyzes the advantages and disadvantages of the two different theories from the perspective of interpretation theory and opponents respectively, and tries to find out the convergence point between the general theory and the opposition theory, and to explain the legal nature of the accessory crime under duress in a reasonable way. And it is pointed out that if our criminal law can not properly solve the legal nature of coerced offender in the existing interpretation path, we must face up to the current legislative defects and look for the solution from the angle of legislative theory. There are four chapters in this paper. The first chapter is an overview of coerced crime. On the basis of introducing the concept and origin of coerced accomplice, this chapter analyzes the essence of coerced accomplice and the theoretical basis of its lenient punishment. In order to introduce the legal nature of coerced accomplice, there is a connotation and extension of the definition of subjugation, and two theories about the legal nature dispute of coerced accomplice are introduced. The second chapter mainly introduces the independent accomplice attribute of the accomplice, analyzes the basis of its current law and the reason of its return respectively, and then introduces the doubts faced by this theory, and summarizes and comments on the theoretical fulcrum of the two theories. From this, the author's opinion on the legal nature of subjugated crime is discussed. The third chapter as the opposite point of view of the second chapter, through the introduction of extraterritorial legislative cases and the changes of criminal policy to provide a reference for the threat offender as the sentencing circumstances, and to analyze the legal nature of the subjugated offender as the sentencing circumstances of the pros and cons. The fourth chapter is to find a way out for the dilemma of the servile offenders discussed above. In the situation that the current law has not yet been amended, the author puts forward the ways to realize the function of the system of coerced offenders, and puts forward a series of solutions; when the legislative opportunity is ripe, the fourth chapter puts forward a series of solutions. The modification of the accomplice should be put on the agenda.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
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