犯罪概念的分层含义与阶层犯罪论体系的再宣扬——以“教唆不满十八周岁的人犯罪”的规范理解为切入

Tiered Meaning of Concept of Crime and Advocation of Tiered Theory of Crime

教唆14周岁的未成年人盗窃的,对教唆者能否适用"教唆不满十八周岁的人犯罪的,应当从重处罚"之刑法规定?如认为14周岁者未达到盗窃罪的刑事责任年龄因此不可能犯盗窃罪从而排除该规定之适用,则对教唆者只能按单独犯罪处理。但这在定罪和量刑上都有不妥。有必要区分"教唆"不满十八周岁的人犯罪与"利用"不满十八周岁的人犯罪,并且在前者的场合肯定教唆者与被教唆者之间成立共同犯罪。客观意义上的犯罪(违法意义上的犯罪)概念,既有助于理论研究的丰富与深入,也有助于实践中具体问题的解决。要想肯定"犯罪"概念的不同含义,不能指望平面四要件体系,而唯有在犯罪成立条件上采取区分违法与有责的阶层体系。

Criminal law provides that one who abets a person under the age of eighteen to commit a crime shall be given a heav- ier punishment. Is this provision applicable for the person who abets a person under the age of fourteen to commit a crime of theft？ Someone consider that a person under the age of fourteen cannot be held liable for the crime of theft because he or she has not reached the age of criminal responsibility. That means the abettor shall be convicted and punished individually. But it is inappropriate in both conviction and sentencing. Based on the above analysis, it is necessary to distinguish ＂instigating ＂ a person under the age of eighteen to commit a crime from ~＇utilizing＂ a person under the age of eighteen to commit a crime. And in the former situation, it is admitted that instigator and the instigated person shall be punished as a joint crime. The concept of the objective crime [ the crime in an illegal sense）is helpful to the improvement of theoretical research and the solution of prob-lems in the practice. And if we would like to admit the different meanings of the concept of crime, we should adopt the three-- class theory of the constitution of crime which distinguishes illegality and responsibility, bus not the planar four elements system.