对我国胁从犯制度的考量

Thought of the Principal Offender System of Our Country

我国刑法理论按作用标准划分了主犯、从犯、胁从犯三种法定的独立共犯人。对于胁从犯之说是否合理,学界存在争议。我国刑法中规定的"被胁迫参加犯罪"并不能成为胁从犯是法定独立共犯人的依据,它仅为一种共同犯罪的法定量刑情节。对于被胁迫参加犯罪的,应当按照行为人在共同犯罪中所起的作用,将其归入主犯或从犯加以处罚,在量刑时应当考虑"被胁迫情节",以符合罪责刑相适应原则的要求。

According to the function, our criminal law theory divides the independent accomplice into three kinds： main criminals, accessorial offenders and forced offenders. Whether the accessorial offender is reasonable or not, there has existed dispute. In our criminal law, being forced to participate in a crime can not been taken as a condition to convict the accessorial offender of the independent accomplice, but as a circumstance for sentencing. As to the accessorial offender, it is expected to take the role in the crime into account when sentencing, and make it conform to the principle of suiting punishment to crime.