必要共同犯罪概念的体系化构造

Systematic construction of the concept of essential joint crime

理论和实践对我国刑法必要共同犯罪概念的认识,基本还停留在德、日刑法必要共犯概念上,二者的混同已然导致了一系列水土不服的现象。事实上,基于中外刑法犯罪论体系、共同犯罪理论及立法的差异,我国刑法必要共同犯罪概念与德、日刑法必要共犯概念存在本质区别,二者乃处于不同层次的两个不同概念。必要共同犯罪实际上仅相当于必要共犯分类下"纯正的必要共犯",至于"不纯正的必要共犯"则应属于任意共同犯罪范畴。若依此对必要共同犯罪概念进行体系化构造,则可使其司法适用难题迎刃而解。

In both theory and practice, the knowledge of the concept of essential joint crime in Chinese criminal law still stays at the concept of essential joint offense in German and Japanese criminal law. In fact, based on the differences between Chinese and foreign criminal law criminology systems, the theories and legislations, there are essential differences between the two concepts in that they are two different concepts at different levels. Essential joint crime is actually equivalent to ＂pure essential joint offense,＂ which is a category under the concept of essential joint offense, while the ＂impure essential joint offense＂ should belong to any common crime. If we construct the concept of essential joint crime in this way, its problems of the judicial application can be solved successfully.