“正犯后正犯”与犯罪参与理论研究

The Study on the Concept of "the Perpetrator behind the Perpetrator" and the Theory of Crime Participation

在实质正犯理论视域下,"正犯后正犯"逐渐得到普遍认可。作为共动形态的"正犯后正犯",明确肯定了幕后参与者的犯罪支配及优越的犯罪支配,再次印证了共同犯罪仅系实现不法的方法类型,揭示了共动现象中各参与犯的不法评价应个别且独立进行。"正犯后正犯"在间接正犯的延长线上极度拓展了正犯的外延,根本上重塑着正犯的形象与内涵,也实质性地影响着犯罪参与理论的重构。"正犯后正犯"虽衍生于正犯与共犯区分制立法,却与限制的正犯概念及二元犯罪参与体系完全相悖,实质上走向了单一正犯概念与单一正犯体系。

Pursuant to the theory of principal offenders,the concept of ' the perpetrator behind the perpetrator' is approved gradually.As a joint form of a crime,die concept of ' the perpetrator behind the perpetrator' confirms that the manipulator behind the crime has also managed the crime,and even got the whip hand in some cases.Moreover,the concept also confirms that the joint form of a crime is just one type of ways to achieve the illegal purpose,and therefore the illegality of each participant should be evaluated independently in these cases.Nowadays,the concept of ' the perpetrator behind the perpetrator' is expanding the scope of principal offenders extremely from the point of indirect principal offenders,and reshaping the concept of principal offenders thoroughly,and affecting the reconstruction of the theory of crime participation.The concept of ' the perpetrator behind the perpetrator' has deviated completely from the concept of limitary perpetrator and the dividing system of crime participation,although it had derived from the latter.As a matter of fact,the concept of 'the perpetrator behind the perpetrator' is coming into an independent concept and tending eventually to unitary system of crime participation.