【作者】 申辉君；

【导师】 刘湘廉；

【作者基本信息】 西南政法大学 ， 刑法， 2009， 硕士

【摘要】 片面帮助犯成立与否,在中外刑法理论和实务中备受争议。笔者从解释学的角度,根据罪刑法定原则和罪责刑相适应原则,对刑法关于共同犯罪的规定,进行重新理解和诠释,对片面帮助犯成立与否进行辨析和研究。最终得出结论:就目前而言,最为妥当的做法是通过共犯制度为片面帮助犯提供处罚依据。全文共36,000余字;除引言和结论外,正文分为五个部分:第一部分是片面帮助犯的概述。国内外关于片面帮助犯的论争主要存在否定说和肯定说两种观点,其争论的焦点是成立片面帮助犯是否必须要有行为人的意思联络。笔者辨析得出:传统共犯理论对共同故意只能是双向意思联络的理解是狭隘的、不完整的;单向意思联络也是共同犯罪故意的表现形式。然后,笔者从片面帮助犯的定义出发,探讨片面帮助犯的概念界定,指出其特征,进而将片面帮助犯的性质定位于共同犯罪。第二部分是研究片面帮助犯的存在范围。笔者从主观方面、表现形式、参与共同犯罪的时间以及行为实施的方式等四个方面来说明片面帮助犯只限于故意,片面帮助行为只包括物质帮助,事前的帮助和事中的帮助,作为和不作为都可成为片面帮助犯的行为表现方式。第三部分从主、客观两方面探讨片面帮助犯的构成要件。主观上,片面帮助犯必须具有片面帮助故意;客观上必须具有片面帮助行为,且片面帮助犯的加功、协力行为必须有利于实行行为的实施或完成。第四部分分析片面帮助犯的停止形态和罪数形态。在停止形态上,一般来说,实行犯是预备、未遂、既遂,则片面帮助犯也是预备、未遂、既遂,但片面帮助犯的停止形态有可能与实行犯不一致;片面帮助犯的未遂形态和中止形态也各有其自身的特点。在罪数形态上,笔者主要探讨了片面帮助犯与连续犯、结合犯和牵连犯的问题。在片面帮助犯中,如果片面帮助者分别实施了数个帮助行为,必须考虑片面帮助者的主观方面才能确定其罪数;如果数行为之间存在牵连或结合关系,则要分情形讨论其罪数问题。第五部分是片面帮助犯的认定和处罚。在认定上,笔者指出了片面帮助犯与片面共犯、帮助犯、同时正犯以及间接正犯等相关犯罪形态之间的联系和区别。在处罚上,首先,笔者论述了片面帮助犯的处罚根据在于片面帮助行为促进了法益侵害,表现为主观根据是帮助故意、客观根据是帮助行为两个方面。其次,笔者建议,片面帮助犯作为从犯,应当“比照主犯”从轻、减轻处罚或者免除处罚,并指出了具体处罚片面帮助犯时应注意的事项,以适应司法实践之需。总之,片面帮助犯的客观存在,迫切要求人们更新共犯观念,创新共犯理论。肯定片面帮助犯成立共同犯罪不仅源于社会现实和司法实践之需,而且突破了传统共犯理论的思维定势,为共犯理论的纵深发展推开了一扇新窗。更多还原

【Abstract】 The establishment of unilateral accessory is subjected to great controversy on the theoretical and practical plane of criminal law in China and abroad. From the angle of hermeneutics, according to principle of a legally prescribed punishment for a specified crime and principle of suiting punishment of crime, the author reinterprets complicity in criminal law and discriminates the establishment of unilateral accessory. Finally, the author draws a conclusion that it’s better to lay punitive foundation for unilateral accessory through complicity system for the time being.The full text covers more than 36,000 words, and the main body concludes five parts except introduction and conclusion.The first part is the summary of unilateral accessory. There are two types of theories on unilateral accessory in China and abroad, one is positive theory and the other is negative theory. And the point at issue is the contact of intention among actors essential to the establishment of unilateral accessory. The author analyses the traditional complicity theory and concludes that it is a narrow and incomplete view that only double-sided contact of intention is common intent in it. One-sided contact of intention is also the form of the intent of complicity. Afterwards, from the beginning of the definition of unilateral accessory, the author probes into the demarcation of the definition of unilateral accessory, points out its features and determines the nature of unilateral accessory on complicity.The author studies the range of existence of unilateral accessory in the second part. From the subjective aspect, only intention exists in unilateral accessory; and from the form of expression, the act of unilateral aid only infers to physical aid; and from the time of participation in complicity, unilateral accessory includes two kinds of unilateral accessory, one is unilateral accessory before the perpetration of a crime, the other is unilateral accessory during the perpetration of a crime; and from the track of act, both action and inaction can be the form of unilateral accessory.In the third part, the author inquires into the important constructive conditions of unilateral accessory from subjective and objective aspects. From the subjective aspect, the intention of unilateral aid is indispensable to unilateral accessory; and from the objective aspect, the act of unilateral aid is essential to unilateral accessory, and the participation and aid of unilateral accessory must be beneficial to the execution or fulfillment of the executor. In the fourth part, the author analyses the pattern of suspension and quantity of crime pattern in unilateral accessory crime. Generally speaking, the pattern of executor is in line with the pattern of unilateral accessory, if the pattern of executor is preliminary, abortive and accomplished, then, the pattern of unilateral accessory is also preliminary, abortive and accomplished. However, the pattern of unilateral accessory could be different from the pattern of executor. And the abortive and accomplished pattern of unilateral accessory have their own features. On the pattern of quantity of crime, the author mainly probes into three problems: one is the problem of unilateral accessory and continuing offense, the other is the problem of unilateral accessory and integrated offense and the third is the problem of unilateral accessory and implicated offense. In the crime of unilateral accessory, only by consideration of subjective aspect can we determine the quantity of crime of unilateral accessory. And we should discuss the quantity of crime according to various conditions, if there is integrated relationship or implicated relationship among several acts.The fifth part covers how to determine and punish unilateral accessory. From the aspect of determination, the author points out the relations and differences between unilateral accessory and one-sided accomplice, accessory, coincident principals and indirect principals. To begin with, from the aspect of punishment, the author discusses that the punitive foundation for unilateral accessory is the act of unilateral aid infringes on legal interests, in the form of subjective foundation, the intention of unilateral aid; and objective foundation, the act of unilateral aid. And then, the author suggests that unilateral accessory should be culpable of lighter punishment, mitigation of punishment below the minimum statutory prescript and remit punishment according to principal offender, after all, unilateral accessory is accessory. Simultaneously, the author points out some matters needing attention in order to fit in with the needs of judicial practice if unilateral accessory be punished.In a word, the objective reality of unilateral accessory urgently demands that people should update the ideology of complicity and innovate the theory of complicity. Regarding unilateral accessory as complicity, not only originates from social reality and the needs of judicial practice, but also breakthroughs the fixed made of thinking of traditional complicity theory and opens a new window for further development of complicity theory.更多还原