刑法共犯规定对共犯从属性说的贯彻

Criminal Law Complicity Stipulation Carrying out to Theory of Complicity Dependency

我国刑法学界对共犯的性质存在学说对立,但是与欧陆、日本刑法学不同,基本上是二重性说和共犯从属性说、独立性说的对立,而且二重性说占据主导地位。站在结果无价值论立场上,对刑法进行实质的、体系的、客观的解释,就可能得出刑法共犯规定实质上贯彻了共犯从属性说的立场。在解释结论上,对《刑法》第29条第2款就会得出与以往所有的刑法学说不同的结论,即仅指被教唆者实行犯罪之后没有达到既遂的情况。

There are different theories on complicy nature in Chinese criminal law. The difference is that the theory of twoness is allegated and takes up leading＇s position in Chinese Criminal law. On the foundation of result unworthiness theory, it will be concluded that the criminal law complicity stipulation virtually carries out to the theory of Complicity Dependency, if the criminal law is interpreted essentially, systematically and objectively. So a conclusion different to all criminal law complicity theoris in the past can be reached that the item 2 of section 29 in Chinese criminal law only refers to such a situation that the man who is instigated has been carried out a crime bue has not finished it.