共犯的实行从属性说在我国的困境与出路

The Plights and Outlets of the Theory of Subservience of Accomplice in China

共犯的实行从属性说在中国尚未真正确立:实务仍在适用共犯独立性说;实行从属性说在我国学界亦受到诸多批评;很多学者误以为处罚教唆未遂便与实行从属性说冲突,这导致该说在我国进一步陷入窘境。实行从属性说符合刑法客观主义立场,我国学者对该说的反对理由并不成立,故我国亦应采纳实行从属性说,以正确引导司法。值得澄清的是,处罚教唆未遂与共犯的实行从属性说并不矛盾。对于性质严重的教唆未遂,仍可认定为犯罪预备,并直接援引处罚预备犯的特别法条第29条第2款;至于该款规定在刑罚配置上相对严苛,可通过灵活运用总则第37条进行补救。

The theory of subservience of accomplice hasn't established in China.Firstly,a case of ' Criminal Justice Reference' indicates that Chinese judicial practice is still applying the theory of independence of accomplice.Secondly,the theory of subservience of accomplice is also criticized by Chinese scholars from different angles.Finally,most Chinese scholars make a mistake that the punishment of attempted instigation conflicts with the Theory of Subservience of accomplice,which makes this theory further misunderstood.The theory of subservience of accomplice conforms to criminal objectivism,therefore has been generally accepted by different legal systems.Moreover,the criticism of Chinese scholars on this theory is unreasonable.So our country should also adopt this theory.At the same time,serious attempted instigation should be punished as preparatory crime due to the 2nd paragraph of article 29,the inappropriate penalty of which can be modified by article 37 of our criminal law.