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非法集资等类型金融犯罪的专业性以及复杂性特征决定了这类犯罪往往由数个行为人共同完成,虽然《关于审理非法集资刑事案件具体应用法律若干问题的解释》第8条规定的内容涉及共同金融犯罪问题,但是尚未涉及共同金融犯罪的一般成立条件。我国近几年来注重共犯理论的研究,但刑法理论对金融共同犯罪问题的研究几乎处于空白状态,因而造成了就金融犯罪类型的共同犯罪成立条件存在诸多争议。从理论高度阐释共同金融犯罪的一般成立要件,应当结合刑法总则与刑法分则的规定。具体而言,首先应立足于我国共犯成立要件:行为人必须是二人以上;基于共同的犯罪故意;实施了共同的犯罪行为。其次在共同金融犯罪中,应将共犯的成立条件植入金融犯罪的全部罪名之中,在贯彻共同犯罪成立条件的同时,结合金融犯罪的特点进行具体判断。
The professionalism and complexity of financial crimes such as illegal fund-raising have often determined that such crimes are often done by several actors. Although article 8 of “Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising” stipulates Common financial crimes, but has not yet involved the common conditions for the establishment of a common financial crime. In recent years, our country has paid attention to the study of the theory of accomplice. However, the theory of criminal law is nearly blank in the research of the problem of financial common crime, which has led to many disputes on the conditions for the establishment of the crime of common crime. From the theoretical perspective to explain the common elements of the establishment of a common financial crime, we should combine the general provisions of criminal law with the provisions of the criminal law. Specifically, we should first base ourselves on the establishment of elements of accomplice in our country: the perpetrator must be two or more people; conduct a common criminal act based on a common criminal intention; Second, in the common financial crime, the conditions for the establishment of an accomplice should be implanted into all the charges of financial crime, while carrying out the conditions for the establishment of a common crime, the judgment should be made according to the characteristics of the financial crime.