间接正犯着手问题研究

Research on the Commencement Issues of the Indirect Principal

间接正犯着手问题是间接正犯理论产生以来刑法理论上争论最为激烈的问题之一。国内外关于着手实行的认定有主观说、形式客观说、实质客观说与折中说四种,难以达成基本共识。在刑法理论上,关于间接正犯的着手标准,存在被利用者说、利用者说与两分说三种观点。在违法论上,结果无价值论反对行为无价值论是值得提倡的。因此,将"实质客观说"中的"结果危险说"作为判断间接正犯实行着手的认定标准,是有其深厚的法理学基础的。

The issue of the commencement of the indirect principal is one of the most controversial issues in criminal law theory,since the indirect principal theory was created.There are four different opinions about the commencement of the indirect principal including subjective theory,the formally objective theory,the essentially objective theory and the accordance theory and they disagree with each other basically.In criminal law theory,about the commencement of the indirect principal,there are three kinds of opinions that are the theory of the used,the theory of the one using and the theory of different ways in different situation.In the theory of the 'Illegal',the theory of the result of no value is worth advocating,which is against the theory of the action of no value.Therefore,regarding the commencement of the indirect principal,the theory of the result in danger of the 'the essentially objective theory' has the solid foundation in jurisprudence.