论涉黑犯罪中“共谋型”组织者、领导者的刑事责任

On the Criminal Liability of “Collusion Type” Organizer andLeader in Crimes with Gang Nature

仅参与共谋而并没有实际参与犯罪实行的黑社会性质组织中的组织者、领导者究竟属于何种共犯类型,主要存在间接正犯说和共谋共同正犯说两种对立观点。由于犯罪实施者仍具有相对的意志自由,与间接正犯在支配程度上存在质的差异,故间接正犯说不尽合理。但鉴于组织的层级结构对成员有一定程度的强制性,应认为组织者、领导者属于支配型共谋共同正犯。组织者、领导者通常对犯罪的实施有直接故意,不要求共犯间当面进行谋议。如果事前双方并未谋议,组织成员为维护组织利益所实施的犯罪,则在主观方面属于间接故意,原则上也应承担刑事责任。客观上,可以修正地认为组织者、领导者通过对实行犯的支配,无须亲手实施实行行为亦可肯定正犯的成立。

There are two opposing viewpoints as to the organizer or leader of an organization with gang nature that engages only in conspiracy and does not actually participate in the commission of a crime:indirect principal offender and conspiracy joint principal offender.Because the perpetrator of the crime still has relative freedom of will,there is a qualitative difference between the indirect principal offender and conspiracy joint principal offender.However,since the hierarchical structure of the organization has a certain degree of compulsion to the members,the organizer and the leader should be considered as the dominant type of conspiracy joint principal offender.The organizer or leader usually has a direct intent on the commission of the crime and does not need face-to-face consultation between the accomplices.If the organizer or leader does not discuss the crime committed by the members of the organization in order to safeguard the interests of the organization,it is indirectly intentional in subjective respect and the organizer or leader should still bear criminal liability in principle.Objectively,it can be amended to think that the organizer and the leader can affirm the establishment of the criminal by controlling the perpetrator and without having to carry out the act by hand.