论共犯的正犯化
发布时间：2019-06-17 14:15
【摘要】：按照共犯理论,共犯在共同犯罪中从属于正犯,定罪量刑都必须依赖于正犯,而刑法中存在着大量将共犯行为直接作为正犯予以处罚的立法,学界称之为共犯的正犯化,特别是最近的刑法修正案体现得十分明显。然而目前我国的立法、司法和学术对共犯正犯化的理论和实践还存在着诸多疑问,本文立足我国刑法,对共犯正犯化的进行剖析,以明确其立法标准,达到司法中的正确适用。第一章讨论我国共犯正犯化的理论语境,在不同的共犯体系下,即单一制与区分制下的共犯与正犯的含义、关系并不相同。单一制以扩张正犯概念为基础,区分制以限制正犯概念为基础。本文认为,我国的立法模式为区分制,区分制能够解决我国共犯体系上的不足,对共同犯罪的处罚更合理,也能防止刑罚的滥用。第二章主要对我国和域外的共犯正犯化立法进行考察。根据考察,日本、德国、英国等发达国家也存在着很多将共犯行为直接作为正犯处罚的例子。我国共犯正犯化的立法在近几年通过刑法修正案对刑法的修正变得活跃,根据其行为表现不同,大致可以分为五个类型:资助型、居间介绍型、提供特殊内容或工具型、协助型以及一般帮助型。第三章主要探讨我国学术界关于共犯正犯化的讨论,主要有肯定说和否定说两种观点,本文赞成肯定说,共犯正犯化并没有违背共犯理论,相反,共犯正犯化是保护法益以及积极的刑事政策的要求。第四章对目前共犯正犯化在立法和实践中的问题进行了探讨,目前存在着缺少科学统一的立法理念、罪状表述不合理以及司法适用上存在难题等多种困境。第五章提出优化共犯正犯化立法的建议。首先在立法理念上必须坚持刑法的谦抑性和保护法益的观念,但在面对层出不穷的新犯罪时也不能畏手畏脚,坚持适度的犯罪化;其次,细化立法标准,共犯行为独立成罪必须具备严重的法益侵害性以及行为本身具备类型化的特征,在立法的时候特别警惕有产业化趋势的犯罪,如网络犯、食品安全犯罪。最后,合理表述罪状,划定适当的犯罪圈,给司法和学术提供明确的指引。
[Abstract]:According to the accomplice theory, the accomplice belongs to the principal offender in the joint crime, and the conviction and sentencing must depend on the principal offender, and there are a large number of legislation in the criminal law that punish the accomplice behavior directly as the principal offender, which is called the principal crime in academic circles, especially the recent amendment of the criminal law is very obvious. However, at present, there are still many questions about the theory and practice of the principal crime of accomplice in the legislation, judicature and academia of our country. Based on the criminal law of our country, this paper analyzes the principal crime of accomplice in order to clarify its legislative standard and achieve the correct application in the judicature. The first chapter discusses the theoretical context of accomplice delinquency in our country, and the relationship between accomplice and principal offender is not the same under different accomplice systems, that is, the meaning of accomplice and principal offender under unitary system and distinguishing system. The unitary system is based on the expansion of the concept of principal offender, and the distinction system is based on the concept of restricted principal offender. This paper holds that the legislative model of our country is the distinction system, which can solve the shortcomings of the accomplice system in our country, and the punishment of joint crime is more reasonable, and it can also prevent the abuse of penalty. The second chapter mainly investigates the positive crime legislation of accomplice in our country and abroad. According to the investigation, there are also many examples of accomplice as punishment of principal offender in developed countries such as Japan, Germany, Britain and so on. In recent years, the legislation of accomplice delinquency in our country has become active through the amendment of criminal law. According to its different behavior, it can be divided into five types: subsidy type, intermediate introduction type, special content or tool type, assistance type and general help type. The third chapter mainly discusses the discussion on the principal crime of accomplice in the academic circles of our country, including positive theory and negative theory. This paper supports the affirmation that the principal crime of accomplice does not violate the theory of accomplice. On the contrary, the principal crime of accomplice is the requirement of protecting legal interests and active criminal policy. The fourth chapter discusses the problems of accomplice delinquency in legislation and practice. At present, there are many dilemmas, such as lack of scientific and unified legislative concept, unreasonable expression of guilt and difficult problems in judicial application. The fifth chapter puts forward some suggestions to optimize the legislation of accomplice delinquency. First of all, we must adhere to the concept of modesty of criminal law and protection of legal interests in the legislative concept, but in the face of endless new crimes, we should not be afraid of hands and feet and adhere to moderate criminalization. Secondly, to refine the legislative standards, the independent crime of accomplice must have the characteristics of serious invasion of legal interests and typification of the behavior itself. When legislating, we should be particularly vigilant against crimes with industrialization trend, such as network crime and food safety crime. Finally, reasonable expression of guilt, delineation of appropriate criminal circle, to provide clear guidance for justice and academic.
【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
[Abstract]:According to the accomplice theory, the accomplice belongs to the principal offender in the joint crime, and the conviction and sentencing must depend on the principal offender, and there are a large number of legislation in the criminal law that punish the accomplice behavior directly as the principal offender, which is called the principal crime in academic circles, especially the recent amendment of the criminal law is very obvious. However, at present, there are still many questions about the theory and practice of the principal crime of accomplice in the legislation, judicature and academia of our country. Based on the criminal law of our country, this paper analyzes the principal crime of accomplice in order to clarify its legislative standard and achieve the correct application in the judicature. The first chapter discusses the theoretical context of accomplice delinquency in our country, and the relationship between accomplice and principal offender is not the same under different accomplice systems, that is, the meaning of accomplice and principal offender under unitary system and distinguishing system. The unitary system is based on the expansion of the concept of principal offender, and the distinction system is based on the concept of restricted principal offender. This paper holds that the legislative model of our country is the distinction system, which can solve the shortcomings of the accomplice system in our country, and the punishment of joint crime is more reasonable, and it can also prevent the abuse of penalty. The second chapter mainly investigates the positive crime legislation of accomplice in our country and abroad. According to the investigation, there are also many examples of accomplice as punishment of principal offender in developed countries such as Japan, Germany, Britain and so on. In recent years, the legislation of accomplice delinquency in our country has become active through the amendment of criminal law. According to its different behavior, it can be divided into five types: subsidy type, intermediate introduction type, special content or tool type, assistance type and general help type. The third chapter mainly discusses the discussion on the principal crime of accomplice in the academic circles of our country, including positive theory and negative theory. This paper supports the affirmation that the principal crime of accomplice does not violate the theory of accomplice. On the contrary, the principal crime of accomplice is the requirement of protecting legal interests and active criminal policy. The fourth chapter discusses the problems of accomplice delinquency in legislation and practice. At present, there are many dilemmas, such as lack of scientific and unified legislative concept, unreasonable expression of guilt and difficult problems in judicial application. The fifth chapter puts forward some suggestions to optimize the legislation of accomplice delinquency. First of all, we must adhere to the concept of modesty of criminal law and protection of legal interests in the legislative concept, but in the face of endless new crimes, we should not be afraid of hands and feet and adhere to moderate criminalization. Secondly, to refine the legislative standards, the independent crime of accomplice must have the characteristics of serious invasion of legal interests and typification of the behavior itself. When legislating, we should be particularly vigilant against crimes with industrialization trend, such as network crime and food safety crime. Finally, reasonable expression of guilt, delineation of appropriate criminal circle, to provide clear guidance for justice and academic.
【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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3 马文;;片面共犯理论的困境及出路探微[J];湖南公安高等专科学校学报;2009年02期
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