共犯处罚根据的反思与重构

Reflection and Reconstruction of the Basis for Punishment of the Accomplice

大陆法系国家共犯的处罚根据,理论上有责任共犯说、不法共犯说、因果共犯说之界分。最初发展起来的责任共犯说与不法共犯说因其自身固有的缺陷而无法自圆其说,逐渐不为学界所采纳,因果共犯说在发展过程中分化为纯粹惹起说与修正惹起说。修正惹起说目前在大陆法系国家的德国和日本都是通说,但也受到挑战。总体而言,作为共犯的教唆犯实质的处罚根据在于教唆者唆使被教唆者,使其产生犯罪的决意,并由被教唆者实行,最终造成了危害社会的结果;而从犯的根据则在于从犯本身具有对正犯施行帮助的故意,客观上对正犯实行犯罪进行援助,使其实行犯罪变得更为容易。

Theoretically, the basis of the joint offense in continental law system countries can be classified as Theory of Responsible Accomplice, Theory of Illegal Accomplice and Theory of Causal Accomplice. The initially developed Theory of Responsible Accomplice and Theory of Illegal Accomplice cannot justify itself due to inherent defect and is gradually given up by the academic world. Theory of Causal Accomplice have been split into Purely Provoked Theory and Meliorated Provoked Theory. Meliorated Provoked Theory is the commonly accepted theory in the continental law countries like German and Japan, although it also comes across challenges. In general, the real reason of why the instigators should be punished is that they incite others who produce criminal intent due to the incitement and commit the crime which leads to evil re sults. On the other hand, the reason of why the accessories should be punished is they have the intention to help the principal offender which objectively support them and make it easier to commit crimes.