共犯处罚根据的全新定位——改良的纯粹惹起说之提倡

A New Understanding of the Basis for the Punishment of the Accomplice:A Case for the Improved Theory of Pure Causation

共犯的处罚根据是共同犯罪的基础问题,对其定位是否准确至关重要。关于共犯的处罚根据,学界多支持修正惹起说或混合惹起说,进而强调共犯具有违法从属的特质。然而,修正惹起说不仅在论证方法上倒为因果,在具体问题上亦不能自圆其说。混合惹起说在论证方法上自相矛盾,解决具体问题的能力也有局限性。纯粹惹起说主张共犯具有独立的违法性和有责性,其实在论理上更加可取,适用于具体问题时也更灵活。但出于法治国原则的要求,纯粹惹起说应接受构成要件的限制进行自我改良,由此才能更加合理地划定共犯的处罚范围。

The basis for the punishment of the accomplice is a fundamental issue of joint crime, the correct understanding of which is of vital importance. With respect to this is- sue, most Chinese scholars support the theory of modified causation or the theory of mixed cau- sation, thereby emphasizing the subordinate nature of the accomplice＇ s illegality. However, the theory of modified causation not only confuses cause with effect in theory, and also is unable to justify itself on specific issues. The theory of mixed causation is also self-contradictory in theory and has limited ability to solve specific problems. The theory of pure causation, according to which the accomplice has his own illegality and responsibility, is not only more reasonable in theory, but also more Hexible in its application to specific issued. The theory of pure causation should be further improved in light of the restrictions of constitutive elements of crime, so as to determine in a more reasonable way the scope of punishment for the accomplice and better meet the requirements of the rule of law.