国际刑法中的行为控制理论

The Control Theory in International Criminal Law

正犯与共犯的区分是一个历史性的刑法难题,在共同犯罪事实关系复杂、不同法系特质杂糅的国际刑法中更是如此。对此问题,在国际刑事司法实践中,起初团伙共同犯罪理论占据了统治地位。然而,团伙共同犯罪理论具有扩张性、主观性的倾向,因此遭到了越来越多的批判。在此背景下,德国刑法学中主、客观共存,事实性与规范性相融合的行为控制理论被引入国际刑法。作为行为控制理论下位概念的共同正犯理论和组织控制理论在司法实践中得以运用,但是质疑和批判也随之而来。作为共同正犯理论之逻辑前提的正犯、共犯二元区分,以及该理论认定的明确性受到了质疑,并且组织控制理论本身也有过度实质化的不良倾向和逻辑自洽性不足的理论危机。国际刑法共犯理论的建构不能简单照搬国内法中现成理论,而应当注重国际刑法在事实层面和法律规范层面所具有的特点,"因地制宜"地建构国际刑法共犯理论。

The differentiation between the perpetrator and the accomplice is a histori- cally difficult criminal law issue. It is even more difficult in international criminal law where joint criminality is more complex and different properties of legal families are intertwined. Ini- tially, the theory of Joint Criminal Enterprise （JCE） was the dominant theory on this issue in the practice of international criminal justice. However, the theory of JCE tends to be subjective and expansive, for which reason it has been criticized by many judges and scholars. Against this background, the control theory originated from German criminal law theory, which combines the subjective with the objective and the factual with the normative, was introduced into internation- al criminal law. As subordinate concepts of the control theory, the theory of joint co-perpetra- tors and the theory of organized control began to gain application in judicial practice. But doubts and criticism also ensued. As the logical premise of the theory of joint co-perpetrators, the dif- ferentiated system of perpetrator and accomplice and the criteria of this system have been put in- to question, while the theory of organized control has the unsound tendency of over-substantia- tion and the criminal law by suiting at factual potential crisis of should not be simpl measures to local con and normative level. gical inconsistency. The theory of participation in international y based on available domestic theory, ditions and based on the character of but should be constructed international criminal law