拟制正犯范围之限制

The Limitation of Fiction of Perpetrator

我国刑法中存在一些将帮助犯、教唆犯拟制为正犯的规定,对于这种立法模式的正当性与否,学界存在肯定说与否定说之分。过多的规定拟制的正犯会破坏刑法总则与分则的体系一致性,有违罪刑均衡原则,并且会过分扩张刑法的处罚范围,引发刑法谦抑性界限的思考而削弱对实践问题的解决能力,因此要限定拟制正犯的存在范围。

In the criminal legislation of our country, we have some fiction of perpetrator which are accessory and instigator. It is difficult to determine whether this legislation pattern is appropriate or not. To solve the problem, the academia of criminal law has proposed resolutions as the doctrine of affirm and doctrine of negative. Too much fiction of perpetrator will destroy the consistence between The general provisions and The specific provisions of criminal law, against the principle of balance between crime and punishment, extend the scope of penalty, violate the principle of Limiting Criminal Law, weaken the resolution of practice of law. In a word, we should limit the scope of fiction of perpetrator.