主犯正犯化质疑

To Challenge the Tendency of Treating the Principal as Perpetrator

刑法学界近来出现了将我国刑法中的"主犯"与德日刑法中的"正犯"等同化并用"正犯"概念代替"主犯",即"主犯正犯化"的倾向。但在犯罪参与体系上,德日刑法采取的是区分正犯与共犯的区分制,而我国刑法采取的是将共同犯罪人分为主犯与从犯的单一制,这就决定了"主犯"与"正犯"概念有重要差异,不能用"正犯"代替"主犯"。主犯正犯化的思想根源是认为单一制存在缺陷,有必要用区分制的观念来解释我国刑法的相关概念和规定。但这既违反了罪刑法定原则,又忽视了我国所采取的单一制的优越性。主犯正犯化的隐患是从根本上否定有中国特色的犯罪参与体系,导致我国刑法失去公平合理处罚共同犯罪人的优势,使简单问题复杂化。

Nowadays, there is a tendency to treat the principal in Chinese criminal law as the perpe- trator in German and Japanese criminal laws. However, the two concepts above have significant differences between each other in the criminal participation systems. To be more precisely, the Ger- man and Japanese criminal laws have distinguished the perpetrator and accomplice by the differential system, while the Chinese criminal law has adopted the unitary system to distinguish the principal and accessory offenders. On one hand, the direct perpetrator who commits the constitutive elements of the crime personally and a certain part of those accomplice perpetrators who commit the crime together in German and Japanese criminal laws, will probably be treated as accessory or even coerced offenders in Chinese criminal law. On the other hand, the indirect perpetrator in German and Japanese laws, who commits the crime indirectly, will be treated as a single offender in China and there will be no space for the existence of principal offender. It is a confusion of the differential system and the unitary system to distinguish perpetrator, or- ganizer, abettor, and aider during the stage of conviction, but principal and accessory during the process of sentencing in China. Even though, adopting such a double differential system in China doesn ＇ t mean the concept of principal equals that of perpetrator. This tendency roots in the belief that it is necessary to use the differential system to illustrate relevant concepts and regulations in Chinese criminal law to make up the shortcomings the unitary system brings. However, this belief not only vio- lates the principal of legality, but also ignores the superiority of the unitary system of Chinese criminal law. The hidden danger of this tendency is to fundamentally deny the criminal participation system with Chinese characteristics. And this will result in the loss of superiority of the unitary system and complicate simple problems.