论帮助犯成立的条件

On Conditions for the Establishment of Accessory

以极端从属性为基础的传统帮助犯成立要件忽略了具有形式违法性而缺乏实质违法性的帮助行为不应当纳入刑法规制范围及难以解释正犯不可罚共犯可罚的情形。因此,构建以最小限度从属性为基础的三阶层帮助犯成立条件势在必行。

The traditional conditions for establishment of accessory based on extreme subordination ignore some helping behaviors which have formal illegality but lack substantive illegality. It should not be included into the scope of criminal law regulation and circumstance which is difficult to explain that the principal offender can not be punished and accomplice can be punished. It is urgently needed to construct conditions for establishment of accessory in the theory of Germany and Japan based on minimum subordination.