继承的共同正犯研究

Study on the Successive Joint Principal Offender

继承的共同正犯,是指对某一个犯罪,先行行为者着手实行后,在行为尚未全部实行终了阶段,他人(后行行为者)与先行者之间产生了共同实施犯罪的意思,此后共同实施犯罪的实行行为的情形。是否应当承认继承的共同正犯概念,后行者是否应当对先行者行为所造成的结果承担责任,对此,刑法理论界存在着肯定说、否定说与限定的肯定说等多种观点。应当认为继承的共同正犯概念有其存在的合理性,而限定的肯定说则更有利于准确界定各行为人的刑事责任。

Successive joint principal offender means that as far as a certain crime is concerned, after the original party has carried out a certain criminal action, in the process that has not been completely finished the original party comes to the joint crime deliberation with other relevant people, and on the basis of this common agreement they commit the criminal action together. With reference to the issue that whether the latter party should take responsibility for the detrimental result that caused by the pre-executor, in the theoretic circle of criminal law there lie the affirmative doctrine, denied doctrine and restrictively affirmative doctrine, etc. In the treatise, the author is in support of the restrictively affirmative doctrine.