论间接正犯的正犯性——以中国立法和司法为视角

On the principle offence of indirect prindpal offence---from the perspective of Chinese legislation and judicature

间接正犯的正犯性的各种学说对于解释间接正犯均具有积极的意义,但都存在着不足之处。间接正犯的正犯性必须立足于构成要件,着眼于实行行为,根据主观与客观相统一的原则,从利用者与被利用者两个方面加以展开。从主观方面讲,间接正犯的正犯性表现为主观上实行犯罪的单独性和实行罪过的独立性;从客观方面讲,间接正犯的正犯性表现为实行行为自然构成的复合性和规范评价的整体性及因果关系自然构成的间接性和规范评价的直接性。

The various theories of the principal offence of indirect principal offence have a positive meaning to explain the indirect principal offence, but there are deficiencies. The principal offence of indirect principal offence must be based on elements of composition, focus on implementation, be based on subjective and the objective of integrating the principles, and be launched from the two areas of using and being used. From a subjective point of view, the principal offence of indirect principal offence is subjective to exercise a crime separately and implement a sin independently; from an objective point of view, the principal offence of the indirect principal offence is to implement natural components compositely, regulate the evaluation integrally, compose causal link indirectly and regulate the evaluation directly.