胁从犯存废论

On Existence or Abolishment of the Coerced Offender

胁从犯是我国刑法特有的规定。胁从犯的存在有违背责任原则之虞,并且不利于"统一法秩序"的构建。基于心理动因、刑罚目的、谦抑精神、司法实践等方面的反思,当法律无法强求受胁迫者拒绝实施犯罪行为,亦即受胁迫者欠缺合法行为的期待可能性时,就不应追究受胁迫者的刑事责任。因此,胁从犯的规定是不必要的,可以考虑予以废除。

The regulation on coerced offenders is rather unique in the criminal law of our country .The existence of coerced offenders is likely to violate the principle of liability , being harmful to construction of the“uniform order of law”.With regard to reflections on aspects of motivation , purpose of punishment , spirit of humbleness and judicial practice , where the law cannot require the coerced offender to refuse committing offence, that is, the coerced offender is in lack of expectations of legitimate conducts , and then the criminal liabilities should not be imposed on the coerced offender .Thus regulations on coerced offenders are not necessary and the abolishment thereof should be considered .