利用无犯意人实现犯罪目的行为之定性

【作者】 杨翔宇；

【导师】 任海涛；

【作者基本信息】 西南政法大学 ， 法律， 2011， 硕士

【摘要】 我国刑法典中虽然没有对正犯与共犯的概念做出规定,但是从学理上看依然存在实行犯与非实行犯的区分。这种区分方式虽然没有延续以德、日为代表的大陆法系区分正犯与共犯的方式,但是从实质上来看二者却有着千丝万缕的联系。从我国刑法分则的具体规定来看,应当说是以单独的直接实行犯为模型而建立的,但是在总则规定中又对非实行犯(如教唆犯)进行了概括性的规定,其实质上与将共同犯罪划分为正犯、共犯并无二致。由此只要谈到共犯理论,我国刑法理论中也避免不了进行正犯与共犯的探讨。在共犯理论中素有依据单一正犯体系之扩张正犯论与依据区分共犯体系之限制正犯论之争。以意、奥为代表的单一正犯体系下,针对共同犯罪并不做正犯与共犯的区分,而以德、日为代表的区分制体系下,对正犯与共犯进行严格区分。我国通说亦主张应当对正犯与共犯进行区分。但在区分正犯与共犯体系下如何理解二者之间的关系,存在着不同观点,具有代表性的当属共犯独立性说与共犯从属性说。在共犯从属性说影响下,间接正犯的概念则被提出。此概念提出之后,在不同理论学说之间引起了不小的争议。扩张正犯理论下并无间接正犯存在的余地,即使在限制正犯论之下也有共犯独立性说对其进行排斥。即便如此,如今间接正犯已在德、日刑法中取得了立法明确规定的地位。在德、日刑法研究的影响下,间接正犯的问题也进入了我国学者以及司法实务的视野。不过,对于间接正犯的地位究竟只是共犯从属性说范畴下之“替补者”或是说其本身当属正犯,以及间接正犯成立之范围无论是在德、日刑法理论中还是在我国刑法理论中,都存在着不同的观点。由于我国共犯理论的影响,学界对于间接正犯的性质、范围、认定等相关问题仍存在一定争议,间接正犯并未在我国刑事立法中取得明确的界定,因而在司法实务中遇到间接正犯类型的案件时存在不同的处理意见,主要是以直接正犯处理、教唆犯处理、间接正犯处理这三种意见。无论以哪种意见处理,都必须论证将行为人的行为解释为符合刑法分则具体罪名犯罪构成要件行为的合法性,那么作为对是否是犯罪行为的一种论证,间接正犯是否具有存在的必要性,以及其存在是否具有不被其他理论包摄的特殊性。鉴于此,本文仍然选择从扩张正犯论与限制正犯论对现实案例的不同影响,探求间接正犯存在的价值。更多还原

【Abstract】 Although there is no regulation about the concept of perpetrator and accomplice in China’s Criminal Code, academically speaking, there still exist some distinction between the principal criminals and joint offenders. The method of the continental legal system which represented by Germany and Japan doesn’t extend in this distinction, but from the point of view, the two are essentially inextricably linked. From the specific provisions of China’s Criminal Code, it should be said that the specific provisions are established on the basis of the direct principal criminals, but in general provisions, it also conducted a general regulation about the joint offenders (such as the instigator). Its essence is exactly the same as the partitioning of the complicity which is divided by perpetrator and accomplice. Thus, when talking about an accomplice theory, the discussion of the perpetrator and accomplice can’t be avoided in the theory of our criminal law. In the theory of accomplice, there always exist an argument between the expansion of the perpetrator theory and the restrictions on the perpetrator theory, which the former is based on the system of the Single perpetrator while the latter is based on the distinction of the accomplice system. Under a single perpetrator system which represented by Italy, Austria, crime is not done for the common distinction between perpetrator and accomplice, while under the distinction system which represented by Germany and Japan, there is a strictly distinction between perpetrator and accomplice. Chinese Tong-saying also advocates a distinction between perpetrator and accomplice. However, there are different opinions on how to understand the relationship between perpetrator and accomplice when distinguish these two systems, the representative viewpoints is the theory of accomplice independence and the theory of accomplice dependence. The concept of indirect perpetrator was raised under the influence of the theory of accomplice dependence. A no small controversy was caused among the different theories after this concept was put forward. Under the theory of the expansion of the perpetrator, there is no room for Indirect Criminal, even under the theory of the restrictions on the perpetrator, there is a theory of the accomplice independence is against it. Perpetrator is enjoying a clear status of legislation now in the Penal Code of Germany and Japan. Under the influence of criminal law study in Germany and Japan, indirect perpetrator problems also step into the judicial practice of China’s scholars and the vision. However, there is controversy on the two factors, one factor is whether the status of indirect complicity is a "Substitution" in the area of accomplice dependence or it is the principal offender; the other factor is the field of indirect complicity’s establishment. The controversy exists not only in the Criminal Code of Germany and Japan, but also in ours. As the impact of China’s complicity theory, there is still controversy in academic about the nature, scope, and identification and other related issues of the indirect perpetrator. Indirect perpetrator is not defined clearly in China’s criminal legislation, and thus different solutions appear when encountered in the judicial practice in the cases of indirect perpetrator. We mainly deal with the following there views: direct perpetrator, instigator and indirect perpetrator solution. No matter what kind of solution they adopt, they must interpret the perpetrator’s conduction to meet the legality which accord with the elements of specific action of criminal charges in specific regulation of Criminal Code. So if it is necessary for the indirect perpetrator to exist when it acts as a proof of committing and whether its existence has special features which other theories do not have. In consideration of this, this article start from the different impact on the practical cases by the theory of the expansion of the perpetrator and the theory of the restrictions on the perpetrator to explore the value of the existence of indirect perpetrator.更多还原