帮助型犯罪研究

A Study on the Helping Type Crime

我国刑法中存在将部分帮助行为单独定罪量刑的立法例,可称之为帮助型犯罪。帮助型犯罪与共同犯罪存在交叉,其实行行为本质上属于帮助行为,但却单独定罪量刑,并且部分脱离了对关联犯罪的从属性。新行为无价值理论为此立法模式提供了理论基础,而帮助行为在现代社会的发展和共同犯罪处罚的漏洞为其出现提供了现实需求。但帮助型犯罪对共犯从属性理论的突破以及部分罪状描述过于简单,导致与关联犯罪中帮助行为区分的模糊性。

It is common in our criminal law to sentence a part of helping behaviors separately. The author regards this kind of helping behavior as helping type crime and would like to introduce the theory of＂correlative behavior＂ to define it. The helping type crime overlaps with joint crimes, and its act of perpetrating belongs to helping behaviors in essence. The helping type crime is appraised for the conviction alone and partly out of the correlative crime. In fact, the theory of New Handlungstmwert provides the basic theory for this legislative model. What＇s more, the development of the helping behavior nowadays and the loophole of the punishment of joint crime call for new changes. However, the breakthrough of accomplice dependency and the flaws of legislative practice still require further discussion.