从对合共犯论到阶层共犯论

From Unified Theory of Complicity to Three-Level Theory of Complicity

共犯论是犯罪论的特殊问题,它只能在犯罪论体系的框架内解决。根据阶层犯罪论,共犯论是围绕着三阶层的体系而展开的,无论是共犯处罚根据中的因果共犯论、违法共犯论和责任共犯论,还是共犯对于正犯的从属性程度,即夸张从属形式、极端从属形式、限制从属形式和最小从属形式,都和三阶层之间具有密切关联。而对合犯罪论,以主客观相统一为中心建立的犯罪论,对于共同犯罪的阐述也只能是从共同犯罪行为和共同犯罪故意这两个方面进行论述,不能充分发展出深入和复杂的共犯理论。我国存在一个从对合犯罪论到阶层犯罪论的演变过程,在共犯论上同样出现了从对合共犯论到阶层共犯论的转变。

The theory of complicity is a special issue of the theory of crime.Therefore,it can only be solved within the framework of the theory of crime.According to three-level theory of complicity,the theory of complicity is based on the three-level theory of crime.Not only the casual theory of complicity,wrongful theory of complicity and culpability theory of complicity in the theory of the ground for punishing accomplice,but also the degree of derivativeness of the accomplice to the perpetrator,i.e.,the form of exaggerated derivativeness,the form of extreme derivativeness,the form of restricted derivativeness and the form of minimal derivativeness,is closely connected with the three levels.While traditional Chinese unified theory of complicity is based on the concurrence of subjective element and objective element.This theory can only explain the complicity from joint criminal act and joint criminal intention,while it cannot develop deep and complicated theory of complicity.In China,the theory of crime is changing from unified theory of crime to three-level theory of crime.At the same time,the theory of complicity has also evolved from unified theory of complicity to three-level theory of complicity.