司法工作人员参与无身份者实施真正身份犯的共犯成立类型研究

On Types of Accomplices in Special Status crimes Committed by the Offenders without Special Status Jointly with Judicial Officers

根据共犯处罚的根据论中的修正惹起说,以及对实行行为的实质理解,在司法工作人员参与无身份者实施以司法工作人员身分作为构成要素的真正身份犯时,司法工作人员只能构成间接正犯,而不能构成教唆犯。而无身份者只能构成帮助犯,不能构成实行犯。

On one hand, by the Modified Provoking Theory, one of the theories witch is named Foundations of Punishment on Accomplices, and according to the substantial interpretation to accomplishment conduct, when the judicial officer participates a crime committed by the offender without special status, he she can only be condemned as an indirect principal offender but not as an abettor. On the other hand, the offender without special status must be interpreted as an assistor but not as a principal offender.