论我国刑法不采取共犯从属性说及利弊

The Pros and Cons of No Subordinate Accomplice in Criminal Law in China

我国刑法采取不区分正犯与共犯的单一正犯(或单一行为人)体系,不存在共犯从属性说赖以存在的犯罪参与体系之基础。《刑法》总则第29条第2款明文规定处罚教唆未遂;刑法分则将许多教唆行为、帮助行为规定为独立的犯罪,将某些犯罪的教唆行为、帮助行为明文规定为与实行行为同等对待,表明我国刑法没有采取共犯从属性说。实行从属性原则不具有理论上的合理性,它会不适当地缩小教唆犯和帮助犯的处罚范围,有可能放纵一些特别危险的教唆犯罪和帮助犯罪的发生。德、日刑法学中有关要素从属性的几种不同学说是以三阶层的犯罪论体系为基础的,一些观点认为我国传统的通说采取了极端从属性说,肯定了共犯对正犯故意的从属性,显然是忽视了我国传统刑法学与德日刑法学以及我国刑法与德日刑法的重大差异。我国不采取共犯从属性说是一种明智的选择,虽然不采取共犯从属说存在扩大教唆犯和帮助犯处罚范围的风险,但是这种风险可以通过完善立法和司法的途径来有效控制。

China＇ s Criminal Law does single crime （or a single person） system, on not distinguish between crime and accomplice of which there is no joint crime properties existing in the foundation of crime to participate in the system. The second paragraph of article 29 of the Criminal Law says that the attempted solicitation shall be punished as well. Many teaching behaviors and solicitation behaviors are ruled as independent crimes and will be equally punished as the practical behaviors, showing that China＇ s Criminal Law did not take accomplice properties theory. Practicing the principle of property does not have the theoretical rationality of the theory for it may inappropriately narrow down the scope of instigator and helpers, which is likely to indulge the occurrence of the particularly dangerous instigated crime and accomplice crime. The properties of several different theories of Germany and Japan Criminal Law are based on three classes of crime theory system. Some people say that China＇ s traditional theory take the angle of extreme properties and affirmed the properties of accomplice of crime intentionally, which apparently ignored the major differences between the traditional criminal jurisprudence in China and in Germany and Japan as well as the differences of Criminal Laws in China, Germany and Japan. Therefore, it is a wise choice that our country doesn＇ t take the theory of properties of accomplice crime. Although not taking the properties of accomplice crime carries the risk of expanding the punishment scope of the instigator and helper, the risk can be improved and effectively controlled with legislative and judicial ways.