行为共同理论之提倡

The Advocate of the Behavioral Common Theory

就共同犯罪的本质问题,行为共同说具有妥当性。相较犯罪共同说,行为共同说更有利于保障人权和贯彻责任主义原则。学界对于行为共同说的质疑和批评,并无理论依据。行为共同说不会违反罪刑法定原则,不存在区分同时犯的困难,也不会扩大处罚范围。所谓的"不需要意思联络",应该是"共同犯罪的成立不以数人之间的意思联络为必要",在数人之间有意思联络,并互相利用他人的行为侵害法益的场合,当然成立共同犯罪;但是即便行为人之间没有意思联络,只要其中一人知道对方在犯罪,并为了对方顺利犯罪而提供了帮助,对于帮助者也应按照共同犯罪的处罚原理进行处理。

The behavioral common theory is adequate to explain the essence of joint crime. Compared with the criminal common theory,the behavioral common theory is more conducive to the protection of human rights and carrying out the responsibility doctrine. There is no theoretical basis for the criticism to the behavioral common theory. Behavioral common theory doesn't violate the principle of legality,and there is no difficulty in distinguishing simultaneous crime. Furthermore,the behavioral common theory never expands the scope of punishment. The 'no mental connection need'should be realized as'the establishment of joint crime can be convicted even without mental connection'. When several people have mental connection and act on each other,the joint crime can be constituted. However,even if there is no mental connection between them,only one clearly knows others are engaged in criminal activities and offer help,he also should be punished according to the joint crime punishment principle as accessory.