论教唆犯与间接正犯之间的认识错误

On the Cognition Error between Abettor and Indirect Guilt

教唆犯与间接正犯间的轻重对比,是解决两者之间认识错误问题的关键。以间接正犯重于教唆犯为依据,两种认识错误的情形均应认定为教唆犯,但该种处理方式与教唆犯对正犯故意的从属性说相矛盾。根据间接正犯具有优越的意思支配性以及实行行为性,难以说明同为未亲手实施实行行为者的间接正犯重于教唆犯。教唆犯在其支配意思受到限制时,依然通过唆使行为实现犯罪故意,其可谴责性应当较间接正犯更为严重。以教唆犯重于间接正犯为依据,两种认识错误情形均可以按照间接正犯处理,无需否定教唆犯对被教唆者故意的从属性。

The contrast about the degree of seriousness between abettor and indirect guilt is the key to correct the cognition error between abettor and indirect guilt. The two kinds of cognition error should be identified as abettor if indirect guilt is more serious than abettor. However, this conclusion is in contradiction with the theory that abettor should be subordinate to principal offender＇ intention. It is difficult to explain that why indirect guilt is more serious than abettor according to the superior control and the nature of act of perpetrating. Because abettor has overcome greater difficulty to instigate the offender effectively, abettor should be more serious than indirect guilt. Therefore, the two kinds of cognition error can be identified as indirect guilt and it is not necessary to deny that abettor should be subordinate to principal offender＇ intention.