试论正犯的两个问题

Probing into Two Issues Concerning Principal

正犯是刑法中最重要的基础性概念之一。在现代各国刑事立法中,存在单一的正犯体系与正犯·共犯分离体系两种类型,两种体系各有长短,但正犯·共犯分离体系更符合罪刑法定主义的要求,也更符合我国实际。在正犯·共犯分离体系中,如何区分正犯与共犯是一个难题,国外学者提出了多种理论,使得大陆法系国家的正犯概念有实质化的趋势,但考虑到我国的共犯立法,应当坚持形式的正犯概念。

Principal is a fundamental concept in criminal law. There are two systems concerning principals in the world, i.e. separation of principal and accessory and non-separation of principal and accessory, both of which have merits and demerits. In this author’s opinion, the former is more compliable with the idea of a prescribed punishment for a specified crime and is easier for us as Chinese people to accept. However, sometimes it is very difficult to distinguish a principal from an accessory. It seems that a variety of principles advocated by foreign scholars have gradually substantialized the concept of principal in civil law countries. However, in consideration of China’s legislative environment, this author concludes that a concept of formal principal should be maintained.