论从犯原因力的判断

On the Judgment of the Causation of the Accessory

从犯的原因力是指成立从犯所必需的因行为人的行为与其他人的犯罪行为之间产生的内在的必然联系。从犯是否成立,要经过一般性判断、具体性判断和排除性判断三个环节。一般性判断主要考虑是否具有成立从犯所要求的主观要件和客观要件,具体性判断涉及事前判断与事后判断、主观判断和客观判断、应然判断与实然判断,排除性判断主要考虑刑法分则的特殊规定和刑法总则中的但书。

The causation of the accessory refers to the essential necessity connection for being an accessory criminal, which is caused by the behavior of the subject with others＇ crime. Determination of whether or not being an accessory depends first on the judgment of the existence of the causation of the accessory instead of the judgment of the degree of the effect of an act. The judgment of the causation of the accessory consists of three steps： general judgment firstly, concrete judgment secondly and exclusive judgment at last. The task of the general judgment is to find whether an act has the subjective and objective conditions for being an accessory. The task of concrete judgment is to decide the starting point of the judgment： before the act or after the act？ subjective or objective？ would be or have been？ The exclusive judgment is to find if there are some special stipulations in specific provision and the proviso in general provision which exclude the causation of the accessory.