论文部分内容阅读
在大陆法系的刑法体系中,有关共犯性质或者说共犯形态(共犯从属性的有无)的争论始终没有休止过。我国长期以来以共犯独立性说为通说,支持该说的学者以我国《刑法》第29条第2款为主要依据来论证共犯独立性说。但是随着作为共犯独立性说的理论基础的“犯罪征表说”渐渐地被当代刑法学理论所淘汰,共犯独立性说的诸多漏洞也被大多数学者所察觉,支持该说的学者往往不能对自己的理论够自圆其说,陷入尴尬的境地。而共犯从属性说结合了客观主义刑法的精神,与刑法的保护法益的目的相契合,有利于妥当的解决共同犯罪中正犯与共犯的定罪量刑问题等诸多优点,应当予以提倡。本文结合对我国共犯性质现状的反思,探讨我国尚以共犯独立性说为主导的原因,并提出了一些解决方案。
In the civil law criminal law system, the nature of the accomplice or the form of accomplice (whether the accomplice subordinates have any or not) has never ceased. Our country has long been saying that accomplices are independent, and scholars who support this argument argue that accomplices are independent on the basis of Article 29, paragraph 2, of the Criminal Law of our country. However, with the theoretical basis of the theory of accomplice independence, “criminal expropriation theory” has been gradually eliminated by the contemporary theory of criminal law. Many loopholes in the theory of accomplice independence have also been noticed by most scholars. Those who support the theory Often can not justify their own theory, into an awkward position. The accomplice subordination attribute combines the spirit of the objectivist criminal law with the purpose of protecting the legal interests of the criminal law and is conducive to appropriately resolving the problems of the conviction and sentencing of the principal criminals and the accomplice in the joint crime and so on, which should be promoted. Based on the reflection of the status quo of the nature of China’s accomplice, this article explores the reasons for our country’s claim of accomplice independence and puts forward some solutions.