承继共犯否定说的提倡与应用
发布时间：2019-06-12 18:15
【摘要】：承继共同犯罪存否论一直是学界争议的问题,但对这一问题的争议实质是对承继共同犯罪场合下后行为者责任分配的争议,即在承继共同犯罪的场合,后行为者应当在多大范围内承担责任。典型表现如非法拘禁罪中后行为者的拘禁行为(时间长短)、诈骗罪中后行为者仅取财的行为、数额犯中后行为者犯罪数额问题等。基于承继共同犯罪的肯定论和否定论会有不同的定罪量刑结果。在日本,承继共犯否定说已经成为主流观点,但在我国学界鲜有学者对此持完全否定的观点。张明楷教授持折中肯定说,只有少数青年学者对此持完全否定观点,任海涛、陈红兵二位学者是代表。一方面,这与我国刑法学界对此问题的重视及研究不够有关;另一方面,也与我国的国情及刑法发展流变有关。长期以来,我国刑法重罪名轻量刑的局面造成国内对承继共同犯罪的研究不够重视,在各种学术论著中对承继共同犯罪的研究限于共犯的一种特殊形式,着墨极少,有的甚至不予涉及。但承继共犯的存否不仅关系到共同犯罪中定罪的罪名,更重要的是关系到实质的量刑问题。对同一个案件适用不同的理论可能会得出完全不同的结论,这关系到每个犯罪人的切身利益。因此,有必要将承继共犯的存否论进行进一步的讨论,一方面可以引起国内学者对这一共同犯罪现象的重视,对其进行深入研究;另一方面,应探寻对每个行为人来说更科学、更客观的定罪量刑原则,切实保障其合法权益。本文直接回应这一争议焦点,认为承继共同犯罪只是对一种犯罪形式的客观描述,而不应包含责任分配,责任分配问题依然应当坚持对案件的实质性评价原则,后行为者不应对其加入之前的行为及其法益侵害结果承担责任。从承继共同犯罪的本源出发,先对承继共犯的概念和内涵作出界定,承继共犯指的是在整个犯罪过程中,先行为者实施了一部分实行行为后,后行为者以犯罪的故意加入进来,继续单独或者与先行为者共同实施犯罪的情形。在此基础上,结合共犯的本质及处罚依据,共同犯罪是行为的共同,而之所以处罚共犯是因为共犯的行为产生了法益侵害结果,即因果共犯论的核心主张。尽管因果共犯论中对共犯的因果关系有了一定程度的扩张,使其具有特殊性,但整体而言,这种扩张是符合实践需要的。因此,在坚持刑法个人主义的基本立场、坚持行为共同说、坚持因果共犯论这些理论基础之上,承继共犯否定说是应然结论,这一原则不应当因实践本身的不同而改变,而是应贯彻到所有案件的判断当中。最后,本文将承继共犯否定说运用到单一行为犯、复合行为犯案例的分析上,明确了上述类型犯罪中的后行为者的责任范围,进一步印证了承继共犯否定说的正确性和对实践的指导意义。
[Abstract]:The theory of whether or not to inherit joint crime has always been a controversial issue in academic circles, but the essence of the dispute over this issue is the dispute over the distribution of responsibility of actors after inheriting joint crime, that is, to what extent should the post-actor bear responsibility in the case of inheriting joint crime. The typical manifestations are the detention behavior of the post-actor in the crime of illegal detention (the length of time), the act of obtaining only the money in the crime of fraud, the amount of the crime committed by the actor after the crime of the amount committed, and so on. Based on the affirmative theory and negation of joint crime, there will be different conviction and sentencing results. In Japan, the theory of inheriting accomplice negation has become the mainstream point of view, but few scholars in our country hold a completely negative view on it. Professor Zhang Mingkai affirmed that only a few young scholars held a completely negative view on this. Ren Haitao and Chen Hongbing were represented by two scholars. On the one hand, this is not related to the attention and research on this issue in the field of criminal law in our country; on the other hand, it is also related to the national conditions of our country and the development and evolution of criminal law. For a long time, the situation of heavy charges and light sentencing in the criminal law of our country has led to the lack of enough attention to the study of inheriting joint crimes in our country. In all kinds of academic works, the research on inheriting joint crimes is limited to a special form of accomplice, and some of them are rarely written, some of which are not even involved. However, the existence of inheritance accomplice is not only related to the conviction of joint crime, but also related to the substantive sentencing. The application of different theories to the same case may draw completely different conclusions, which is related to the vital interests of each perpetrator. Therefore, it is necessary to further discuss the theory of inheriting accomplice. On the one hand, domestic scholars can pay attention to this joint crime phenomenon and study it in depth; on the other hand, we should explore a more scientific and objective principle of conviction and sentencing for each actor, and effectively protect their legitimate rights and interests. In response to this controversial focus, this paper holds that the inheritance of joint crime is only an objective description of a form of crime, and should not include the distribution of responsibility. The distribution of responsibility should still adhere to the principle of substantive evaluation of the case, and the actors should not be held responsible for the behavior before joining the crime and the result of the infringement of legal interests. Starting from the origin of inheriting joint crime, this paper first defines the concept and connotation of inheriting accomplice. Inheriting accomplice refers to the situation in which the actor continues to commit the crime alone or jointly with the person who committed the crime alone or jointly in the whole process of the crime after the actor has committed a part of the act with the intent of the crime. On this basis, combined with the nature and punishment basis of accomplice, joint crime is the joint act of behavior, and the reason for punishing accomplice is that the accomplice behavior produces the result of legal interest infringement, that is, the core proposition of causality accomplice theory. Although the causality of accomplice has been expanded to a certain extent in the theory of causal accomplice, which makes it special, on the whole, this expansion is in line with the needs of practice. Therefore, on the basis of insisting on the basic stand of individualism in criminal law, insisting on the theory of joint act and insisting on the theory of accomplice of causality, the principle of inheriting accomplice should not be changed according to the difference of practice itself, but should be carried out in the judgment of all cases. Finally, this paper applies the theory of inheritance accomplice negation to the analysis of single act crime and compound act crime case, clarifies the scope of responsibility of the post-actor in the above types of crime, and further confirms the correctness of the inheritance accomplice negation theory and its guiding significance to practice.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2498206
[Abstract]:The theory of whether or not to inherit joint crime has always been a controversial issue in academic circles, but the essence of the dispute over this issue is the dispute over the distribution of responsibility of actors after inheriting joint crime, that is, to what extent should the post-actor bear responsibility in the case of inheriting joint crime. The typical manifestations are the detention behavior of the post-actor in the crime of illegal detention (the length of time), the act of obtaining only the money in the crime of fraud, the amount of the crime committed by the actor after the crime of the amount committed, and so on. Based on the affirmative theory and negation of joint crime, there will be different conviction and sentencing results. In Japan, the theory of inheriting accomplice negation has become the mainstream point of view, but few scholars in our country hold a completely negative view on it. Professor Zhang Mingkai affirmed that only a few young scholars held a completely negative view on this. Ren Haitao and Chen Hongbing were represented by two scholars. On the one hand, this is not related to the attention and research on this issue in the field of criminal law in our country; on the other hand, it is also related to the national conditions of our country and the development and evolution of criminal law. For a long time, the situation of heavy charges and light sentencing in the criminal law of our country has led to the lack of enough attention to the study of inheriting joint crimes in our country. In all kinds of academic works, the research on inheriting joint crimes is limited to a special form of accomplice, and some of them are rarely written, some of which are not even involved. However, the existence of inheritance accomplice is not only related to the conviction of joint crime, but also related to the substantive sentencing. The application of different theories to the same case may draw completely different conclusions, which is related to the vital interests of each perpetrator. Therefore, it is necessary to further discuss the theory of inheriting accomplice. On the one hand, domestic scholars can pay attention to this joint crime phenomenon and study it in depth; on the other hand, we should explore a more scientific and objective principle of conviction and sentencing for each actor, and effectively protect their legitimate rights and interests. In response to this controversial focus, this paper holds that the inheritance of joint crime is only an objective description of a form of crime, and should not include the distribution of responsibility. The distribution of responsibility should still adhere to the principle of substantive evaluation of the case, and the actors should not be held responsible for the behavior before joining the crime and the result of the infringement of legal interests. Starting from the origin of inheriting joint crime, this paper first defines the concept and connotation of inheriting accomplice. Inheriting accomplice refers to the situation in which the actor continues to commit the crime alone or jointly with the person who committed the crime alone or jointly in the whole process of the crime after the actor has committed a part of the act with the intent of the crime. On this basis, combined with the nature and punishment basis of accomplice, joint crime is the joint act of behavior, and the reason for punishing accomplice is that the accomplice behavior produces the result of legal interest infringement, that is, the core proposition of causality accomplice theory. Although the causality of accomplice has been expanded to a certain extent in the theory of causal accomplice, which makes it special, on the whole, this expansion is in line with the needs of practice. Therefore, on the basis of insisting on the basic stand of individualism in criminal law, insisting on the theory of joint act and insisting on the theory of accomplice of causality, the principle of inheriting accomplice should not be changed according to the difference of practice itself, but should be carried out in the judgment of all cases. Finally, this paper applies the theory of inheritance accomplice negation to the analysis of single act crime and compound act crime case, clarifies the scope of responsibility of the post-actor in the above types of crime, and further confirms the correctness of the inheritance accomplice negation theory and its guiding significance to practice.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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