摘要
在概念上,美国刑法之"被利用的实行犯",相当于英国刑法之"无罪代理人原则",德日刑法之"间接正犯";在功能上,"被利用的实行犯"能够弥补,因"从犯责任"之不足而产生的司法漏洞;在性质上,"被利用的实行犯"被视为主犯,但实质为共犯;在主客观特征上,"被利用的实行犯"最主要的客观特征为,实行犯之行为具有消极次要性,但其主观上的犯罪意图却可以为故意、轻率、过失等。
'Perpetrator by means' in American criminal law, means the criminal who cause an innocent agent to make offense, and liability principle about its principal character.In concept, 'Perpetrator by means' in American criminal law, is similar to 'innocent agent' in English criminal law, 'indirect perpetrator' in Rome Criminology. The doctrine acts as a gap-stop for derivative liability, being principal in appearance and accomplice in essence. That the perpetrator should be passive and secondary is the main objective character for 'perpetrator by means', but there is no special requirement in the form of mental state. In addition, about the relationship between the status and the concept, American modern criminal law, most is inclined to assert that the man without special status can also reach 'perpetrator by means'.
出处
《国家检察官学院学报》
2004年第5期113-120,共8页
Journal of National Prosecutors College
关键词
从犯责任
主犯性
身份
accessory liability
principal quality
status
