教唆犯研究
发布时间：2019-06-27 11:54
【摘要】：教唆犯是区分制共犯体系下的法律概念。以德国、日本等国为代表的区分制共犯体系,以限制的正犯概念为其基底,将犯罪参与人在构成要件层面区分为正犯和共犯,教唆犯是共犯的一种。在德日刑法理论上,对共犯论的研究一般以教唆犯为例展开论述,进而形成了包括教唆犯的处罚根据、教唆犯的属性、教唆犯的构成等内容在内的教唆犯理论体系,但是,在上述体系相关问题的具体内容上却存在争议,几乎对每一个细小的问题都有不同观点的对立。我国的刑法理论虽然脱胎于前苏联刑法学,但近20年来受德日刑法理论的影响较深,对教唆犯问题,理论上近来的研究路径基本上是以德日刑法理论为模板进行研究,但在相关问题的广度和深度上,与德日刑法理论还有一定差距,同时,对一些具体的问题也没有取得共识。在英美法系和单一正犯体系的国家立法和刑法理论中,严格地说不存在教唆犯这一法律概念。对以教唆方式实施犯罪的行为人,英美法系根据具体情况,分别按照未完成罪之一的教唆罪和共犯中的从犯来处理,其理论和判例对一些具体问题的处理,可以为我国刑法中的教唆犯问题提供借鉴。在单一正犯体系下,所有与犯罪结果的发生有因果关系的人,都是正犯,在犯罪的成立、刑罚的裁量等问题上,对包括传统意义上的教唆犯在内的犯罪参与者,都是按照单独犯的方法进行考察,在这种思考方式下,对以教唆方式参与犯罪的人,不可能形成类似于区分制共犯体系下的精细而庞杂的理论体系,但是这种将共同犯罪人按照单独犯考察的思维方式,也不失简洁、明快的理论优点,这种思考方法,对于我国的教唆犯问题,应该能够起到对照、反思和借鉴的作用。正如有学者所指出的那样,我国刑法的共犯参与体系,应当理解为单一正犯体系,因此,按照单一正犯体系的思考方法来考察我国刑法理论中的教唆犯问题,也未必不是有益的探讨。鉴于上述原因,笔者在本文中主要借鉴德日刑法理论中的相关理论,对我国刑法中教唆犯问题进行探讨,同时在一些具体问题上考察英美法系中教唆罪或者从犯的相关立法和理论,以期对我国刑法中的教唆犯问题有所借鉴；另外,笔者在对各个问题的论述中,也尝试通过单一正犯体系的理论路径对教唆犯的相关问题予以解释和说明,以期为我国刑法中的教唆犯问题的解决提供另一种理论选择。除导论外,本文分五章。第一章,教唆犯的性质。按区分制共犯体系的语境,教唆犯的性质问题就是独立性和从属性问题,即教唆犯的构成是否以实行犯的实行行为为前提。本章的主要内容有：1、对英美法系中“教唆犯”的相关规定和单一正犯体系的基本特点做了简要介绍,对上述两个法系(体系)中“教唆犯”的性质问题做了探讨,重点以单一正犯体系的视角,对我国刑法中教唆犯的属性问题展开论述。2、梳理了德、日刑法理论中教唆犯从属性和独立性的相关内容,重点就要素从属性的不同观点做了评析。3、对我国刑法理论上教唆犯性质的不同观点进行了梳理,并重点就近来逐渐有力的从属性说做了分析,最后结合我国刑法和德、日刑法在立法上的不同,对我国刑法教唆犯的性质问题提出自己的观点。第二章,教唆犯的构成。1、梳理了理论上对教唆犯构成要件的不同观点,结合我国刑法规定,得出我国刑法的教唆犯构成要件应持“二要件说”的立场。2、讨论了教唆行为的基本内容,重点就教唆强度的上下限、教唆对象是否特定、对已有犯意但犯意不坚决者能否实施教唆以及不作为教唆问题进行论述。3、讨论了教唆故意的基本内容,梳理了英美法系中围绕“教唆犯”主观心态的理论争议,讨论了德日刑法理论中“双重故意说”和“单一故意说”的争议,并重点就片面教唆、未遂教唆和陷阱教唆等问题进行了分析。4、讨论了被教唆人实行行为的基本内容,在实行行为的客观方面,重点梳理了日本刑法理论上对预备犯的教唆问题的争议和教唆犯因果关系问题上的争议；在实行行为的主观方面,重点就近来日益有力的否定共犯对正犯故意从属性的观点进行了分析和反驳。第三章,教唆犯的停止形态。1、梳理了德日刑法理论和我国刑法学上对教唆行为性质的争议,借鉴单一正犯体系的思考方式,将教唆行为定位为正犯行为,同时重点对德日即我国刑法理论上教唆犯着手的问题进行了梳理讨论。2、讨论了德国刑法第30条教唆未遂的主客观要件,梳理了我国刑法理论上对《刑法》第29条第2款的不同观点,对该款规定所涉及的范围和教唆人的犯罪停止形态问题做了重点分析。3、梳理了德日刑法理论和英美法系中“教唆犯”中止的规定和理论,分析了我国刑法中教唆犯中止的构成；结合日本刑法理论中教唆犯脱离的理论研究,重点就我国刑法中教唆犯脱离与教唆犯中止的关系、教唆犯脱离的成立条件以及脱离的法律后果做了分析研究。第四章,教唆犯的刑事责任。1、对英美法系、德日和我国刑法理论中教唆犯的处罚根据问题进行了梳理,重点就因果共犯论中的不同观点进行了评析,并结合我国刑事立法对我国教唆犯的处罚根据问题进行了探讨。2、梳理了各国立法和理论上对教唆犯的处罚规定和处罚原则,重点对我国刑法中教唆犯的处罚原则及其在共同犯罪中所起作用的判断方法进行了探讨。第五章,教唆犯的其他问题。1、在教唆犯与身份犯的问题中,围绕无身份者教唆有身份者实现犯罪、有身份者教唆无身份者实现身份犯和有身份者教唆无身份者实施不纯正身份犯三个问题展开讨论,梳理、评析了理论上存在的不同观点,并对上述问题的处理提出自己的观点。2、在教唆犯的错误问题中,梳理了德日刑法理论和我国刑法学中对具体的事实错误、抽象的事实错误和教唆犯与间接正犯的错误等问题的争议,并提出自己的观点。
[Abstract]:The abettor is the legal concept under the system of distinguishing the accomplice. In Germany, Japan and other countries, on the basis of the division of the system of the accomplice, the concept of the crime of the crime is the base of the crime, and the participant in the crime is divided into the positive and the accomplice at the constituent element level, and the abettor is one of the accomplices. In the theory of German criminal law, the study of the theory of the accomplice generally takes the abettor as an example, and then forms the theoretical system of the abettor, including the punishment of the abettor, the property of the abettor, the composition of the abettor, etc., but, There is a dispute over the specific content of the above-mentioned system, and it is almost the opposite of different views on every fine problem. Although the theory of criminal law of our country has been removed from the former Soviet criminal law, the influence of the theory of the German criminal law in the past 20 years has been deeper and the problem of the abettor is, in theory, the recent research path is based on the theory of German criminal law as a template, but in the breadth and depth of the related problems, There is still a gap between the theory of German criminal law and the theory of German criminal law. At the same time, there is no consensus on some specific problems. In the theory of the national legislation and criminal law of the Anglo-American law system and the single-system, it is strictly stated that there is no legal concept of abetting. On the basis of the specific situation, the Anglo-American law system, according to the specific circumstances, has dealt with the abetting and the accomplice of one of the uncompleted crimes, and the theory and the case of the crime are the treatment of some specific problems, which can provide the reference for the abettor in the criminal law of our country. in that case of a single positive crime, all those who have a causal relationship with the result of the crime are a positive person, a crime participant, including an abettor in the traditional sense, is investigated on the basis of the establishment of the crime and the discretion of the penalty, etc., and all the persons, including the abettors in the traditional sense, are investigated in accordance with the method of the individual crime, In this way, it is not possible to form a fine and complex theoretical system that is similar to that of the system of distinguishing the accomplice, but the way of thinking in which the co-offender is to be investigated in a separate way is also a simple and quick theoretical advantage. This kind of thinking method, for our country's instigator problem, should be able to act as the control, the reflection and the reference. As some scholars have pointed out, the participation system of the accomplice in the criminal law of our country should be understood as a single system of positive crime. Therefore, it is not necessary to explore the abettor in the theory of criminal law in our country according to the thinking method of the single system. In view of the above-mentioned reasons, the author mainly uses the relevant theories in the theory of German criminal law, and probes into the problem of the abettor in the criminal law of our country. At the same time, the author investigates the instigation or the related legislation and the theory of the offense in the common law system in some specific problems. In this paper, the author also tries to explain and explain the related problems of the abettors through the theoretical path of a single system of positive crime in the discussion of various problems. The aim of this paper is to provide another theoretical choice for the solution of the problem of abettors in the criminal law of our country. In addition to the introduction, this article is divided into five chapters. The first chapter, the nature of the abettor. According to the context of the system of distinguishing the accomplice, the problem of the nature of the abettor is independence and from the question of the property, that is, whether the composition of the abettor is the premise of the implementation of the crime. The main contents of this chapter are as follows:1. The basic characteristics of the "abettor" in the Anglo-American legal system and the basic characteristics of the single system are briefly introduced, and the properties of the "abettor" in the two systems are discussed. The article discusses the property of the abettor in the criminal law of our country. In the end, the author puts forward his own opinions on the nature of the abettor of the criminal law in our country. In the second chapter, the composition of the abettor is the first, the different views on the constituent elements of the abettor in the theory, combined with the provisions of the criminal law of our country, it is concluded that the constituent elements of the abettors of our criminal law should take the "the two essential elements" 's position.2. The basic contents of the abetting behavior are discussed, and the upper and lower limits of the abetting strength are emphasized. The article discusses whether the abetting object is specific, whether the abetting and the abetting is not the abetting problem, the author discusses the basic content of the abetting intention, and combs the theoretical dispute about the subjective attitude of the "abettor" in the Anglo-American law system. In this paper, the "double-purpose" and "single purpose" in the theory of German criminal law are discussed, and the problems such as one-sided abetting, attempted abetting and trap abetting are analyzed.4. The basic contents of the act of abetting people are discussed, and the objective aspect of the act is discussed. This paper focuses on the controversy on the problem of the abetting and the relationship between the abettor and the abettor in the theory of Japanese criminal law. In the subjective aspect of the practice, the author analyzes and refutes from the point of view of the increasingly powerful negative accomplice. The third chapter, the stop form of the abettor.1. It's combing the theory of German criminal law and the controversy on the nature of the abetting behavior in our country's criminal law. At the same time, the author makes a general discussion on the problem of instigation in the theory of criminal law of Germany, and discusses the main objective elements of the attempt to abet in the article 30 of the German criminal law, and then combs out the different views of the criminal law of our country on the article 29, paragraph 2, of the Criminal Law. On the basis of the analysis of the provisions and the theory of the suspension of the "abettor" in German criminal law theory and common law system, the paper analyzes the constitution of abettor in our country's criminal law. In the light of the theoretical study of the separation of abettors from the theory of criminal law in Japan, the author makes an analysis and study on the relationship between the abetting of the abettor and the abetting of the abettor, the conditions of the establishment of the abettor and the legal consequence. Chapter four, the criminal responsibility of the abettors.1. The punishment of the abettors in the Anglo-American law system, the German day and the criminal law theory of our country is analyzed according to the problem, and the different views of the cause and effect accomplice theory are analyzed. The article discusses the punishment of the abettors in our country by combining the criminal legislation of our country. The article focuses on the punishment principle of the abettor in the criminal law of our country and the method of judging the role of the abettor in the joint crime. Chapter five, the other problems of the abettor.1. In the problem of the abettor and the identity, the identity-offender is abetted to realize the crime, the identity-offender is abetted to realize the identity-offender and the identity-offender abets the non-identity person to implement the three problems of the non-pure identity, In this paper, the author makes an analysis of the different viewpoints in the theory and puts forward his own opinions on the above-mentioned problems. In the wrong question of the abettor, we have combed the theory of German criminal law and the specific facts in our criminal law. The abstract facts of the facts and the errors of the abettors and the indirect ones, and so on, and put forward their own views.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D924.1
，
本文编号：2506766
[Abstract]:The abettor is the legal concept under the system of distinguishing the accomplice. In Germany, Japan and other countries, on the basis of the division of the system of the accomplice, the concept of the crime of the crime is the base of the crime, and the participant in the crime is divided into the positive and the accomplice at the constituent element level, and the abettor is one of the accomplices. In the theory of German criminal law, the study of the theory of the accomplice generally takes the abettor as an example, and then forms the theoretical system of the abettor, including the punishment of the abettor, the property of the abettor, the composition of the abettor, etc., but, There is a dispute over the specific content of the above-mentioned system, and it is almost the opposite of different views on every fine problem. Although the theory of criminal law of our country has been removed from the former Soviet criminal law, the influence of the theory of the German criminal law in the past 20 years has been deeper and the problem of the abettor is, in theory, the recent research path is based on the theory of German criminal law as a template, but in the breadth and depth of the related problems, There is still a gap between the theory of German criminal law and the theory of German criminal law. At the same time, there is no consensus on some specific problems. In the theory of the national legislation and criminal law of the Anglo-American law system and the single-system, it is strictly stated that there is no legal concept of abetting. On the basis of the specific situation, the Anglo-American law system, according to the specific circumstances, has dealt with the abetting and the accomplice of one of the uncompleted crimes, and the theory and the case of the crime are the treatment of some specific problems, which can provide the reference for the abettor in the criminal law of our country. in that case of a single positive crime, all those who have a causal relationship with the result of the crime are a positive person, a crime participant, including an abettor in the traditional sense, is investigated on the basis of the establishment of the crime and the discretion of the penalty, etc., and all the persons, including the abettors in the traditional sense, are investigated in accordance with the method of the individual crime, In this way, it is not possible to form a fine and complex theoretical system that is similar to that of the system of distinguishing the accomplice, but the way of thinking in which the co-offender is to be investigated in a separate way is also a simple and quick theoretical advantage. This kind of thinking method, for our country's instigator problem, should be able to act as the control, the reflection and the reference. As some scholars have pointed out, the participation system of the accomplice in the criminal law of our country should be understood as a single system of positive crime. Therefore, it is not necessary to explore the abettor in the theory of criminal law in our country according to the thinking method of the single system. In view of the above-mentioned reasons, the author mainly uses the relevant theories in the theory of German criminal law, and probes into the problem of the abettor in the criminal law of our country. At the same time, the author investigates the instigation or the related legislation and the theory of the offense in the common law system in some specific problems. In this paper, the author also tries to explain and explain the related problems of the abettors through the theoretical path of a single system of positive crime in the discussion of various problems. The aim of this paper is to provide another theoretical choice for the solution of the problem of abettors in the criminal law of our country. In addition to the introduction, this article is divided into five chapters. The first chapter, the nature of the abettor. According to the context of the system of distinguishing the accomplice, the problem of the nature of the abettor is independence and from the question of the property, that is, whether the composition of the abettor is the premise of the implementation of the crime. The main contents of this chapter are as follows:1. The basic characteristics of the "abettor" in the Anglo-American legal system and the basic characteristics of the single system are briefly introduced, and the properties of the "abettor" in the two systems are discussed. The article discusses the property of the abettor in the criminal law of our country. In the end, the author puts forward his own opinions on the nature of the abettor of the criminal law in our country. In the second chapter, the composition of the abettor is the first, the different views on the constituent elements of the abettor in the theory, combined with the provisions of the criminal law of our country, it is concluded that the constituent elements of the abettors of our criminal law should take the "the two essential elements" 's position.2. The basic contents of the abetting behavior are discussed, and the upper and lower limits of the abetting strength are emphasized. The article discusses whether the abetting object is specific, whether the abetting and the abetting is not the abetting problem, the author discusses the basic content of the abetting intention, and combs the theoretical dispute about the subjective attitude of the "abettor" in the Anglo-American law system. In this paper, the "double-purpose" and "single purpose" in the theory of German criminal law are discussed, and the problems such as one-sided abetting, attempted abetting and trap abetting are analyzed.4. The basic contents of the act of abetting people are discussed, and the objective aspect of the act is discussed. This paper focuses on the controversy on the problem of the abetting and the relationship between the abettor and the abettor in the theory of Japanese criminal law. In the subjective aspect of the practice, the author analyzes and refutes from the point of view of the increasingly powerful negative accomplice. The third chapter, the stop form of the abettor.1. It's combing the theory of German criminal law and the controversy on the nature of the abetting behavior in our country's criminal law. At the same time, the author makes a general discussion on the problem of instigation in the theory of criminal law of Germany, and discusses the main objective elements of the attempt to abet in the article 30 of the German criminal law, and then combs out the different views of the criminal law of our country on the article 29, paragraph 2, of the Criminal Law. On the basis of the analysis of the provisions and the theory of the suspension of the "abettor" in German criminal law theory and common law system, the paper analyzes the constitution of abettor in our country's criminal law. In the light of the theoretical study of the separation of abettors from the theory of criminal law in Japan, the author makes an analysis and study on the relationship between the abetting of the abettor and the abetting of the abettor, the conditions of the establishment of the abettor and the legal consequence. Chapter four, the criminal responsibility of the abettors.1. The punishment of the abettors in the Anglo-American law system, the German day and the criminal law theory of our country is analyzed according to the problem, and the different views of the cause and effect accomplice theory are analyzed. The article discusses the punishment of the abettors in our country by combining the criminal legislation of our country. The article focuses on the punishment principle of the abettor in the criminal law of our country and the method of judging the role of the abettor in the joint crime. Chapter five, the other problems of the abettor.1. In the problem of the abettor and the identity, the identity-offender is abetted to realize the crime, the identity-offender is abetted to realize the identity-offender and the identity-offender abets the non-identity person to implement the three problems of the non-pure identity, In this paper, the author makes an analysis of the different viewpoints in the theory and puts forward his own opinions on the above-mentioned problems. In the wrong question of the abettor, we have combed the theory of German criminal law and the specific facts in our criminal law. The abstract facts of the facts and the errors of the abettors and the indirect ones, and so on, and put forward their own views.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D924.1
，
本文编号：2506766
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2506766.html
