破解与剥离——不法共犯说下间接正犯的反思与出路

Break and separate:the reconsideration of indirect principle in the area of illegal accomplice theory

间接正犯作为责任共犯说的产物,随着不法共犯说成为主流难以自洽。间接正犯中利用有责性阶层阙如者实施犯罪的情形可以通过共犯理论得以周延,在此语境下废除间接正犯的概念并无不妥;而利用不法性阶层阙如者实施犯罪的情形即使在不法共犯说的框架下共犯也难以成立,在此语境下间接正犯的概念予以保留。不法共犯说之下,间接正犯只应包括利用他人不具不法性的行为实施犯罪的情形,如此一来,共犯与间接正犯的界限泾渭分明,间接正犯着手等问题也迎刃而解。

Indirect principle is the result of liability accomplice theory, with the illegal accomplice theory be- coming the main stream theory, the concept of indirect principle cannot unify. People who lacks responsibil- ity in indirect principle can be solved by the theory of complicity, in this area, the concept of indirect princi- ple can be abolished, but the situation in which people lacks unlawfulness cannot be solved in the frame of complicity, in this area the concept of indirect principle can be kept. Under the theory of illegal accomplice, the concept of indirect principle only includes the situation of use other people＇s unlawful action, from this angle, the line between accomplice and indirect principle is clear, the problem of point commence can also be solves.