被迫行为在我国和大陆法系犯罪论体系中的应然地位

On the "Ought to" Status of Forced Acts in the Criminal Theory of China and Continental Law System

被迫行为是英美法系刑法中的一种合法辩护事由,我国刑法典在紧急避险和胁从犯中规定了被迫行为,但两者对被迫行为的规定是有冲突的。为有效处理这一矛盾,应取消胁从犯的规定,把被迫行为放在紧急避险中讨论,同时,应当把紧急避险放在犯罪论体系中进行讨论。在大陆法系犯罪论体系中,主流的观点认为被迫行为是违法阻却事由,而非责任阻却事由。事实上,被迫行为应当是责任阻却事由。

Forced act works as a legal defense matter in the criminal law of common law system. The forced act is regulated in the two articles of our country＇s criminal code where the conflicts can be found in the regulation about the act of rescue and the coerced accomplice. To deal with the conflicts effectively the coerced accomplice should be cancelled. The forced act should be discussed in the act of rescue, which should be discussed in the criminal law system. In the criminal theory of civil law system ,the main ideas hold that the forced act is a reason which resists invalidity rather than resists responsibility,actually the forced behavior should be a reason which resists responsibility.