共犯从属性立场的进一步贯彻

Further Implementation of the Derivative Theory of Accessory

共犯从属性立场的坚实贯彻,有利于一些疑难、争议问题的妥当解决。共犯具有实行从属性,且其犯罪性和可罚性低于正犯,预备犯又极其例外地被处罚且处罚很轻,因此预备共犯不罚。自杀行为缺乏法益保护对象,不违法。根据共犯的限制从属性原理,参与自杀不成立犯罪。参与自杀的性质不同于以教唆、欺骗方式的杀人间接正犯,也不同于受嘱托杀人。教唆之罪与正犯实行之罪不同,但具有实质重合性的,正犯"实行过限"时,教唆犯和正犯罪名不一致,教唆犯因责任主义仅成立教唆之罪名;正犯"实行不足"时,一般来说教唆犯和正犯罪名一致,因为教唆犯从属于正犯的客观不法,个别情况下由于刑法特别规定(比如结果加重犯)以及罪名之间性质的特殊性,教唆犯可成立教唆之重罪,正犯仅成立实行之轻罪。

Consistently implementing the derivative theory of accomplice is beneficial to solve the difficult or controversial criminal issues appropriately. Featured with dependency,the criminality and culpability of accessory is less than perpetrator. At the same time,the punishment to preparatory crime is extremely exception and gentle,thus accessory of preparatory crime should not be punished. Suicide does not violate laws since there is no legal interest protected,therefore accessory of suicide should not be punished in accordance with the restrictive derivativeness of accessory. Accessory of suicide is different from indirect perpetrator of murder by abet or deceive,and is different from murder on consent. On conditions of accusation,inciter and perpetrator are different but also are coincident in essence. They are different when the perpetrator perpetrates excessively. The inciter should only be accused as incited crime because of the responsibility principle. They are the same when the perpetrator perpetrates deficiently in general,because inciter is derivative to perpetrator's objective unlawfulness,however incited should accused as incited crime in rare cases. The perpetrator should only be punished as perpetrated crime,because of specific criminal legislation and the specificity of accusations.