亲手犯概念中的事实与规范:以机能反思制度

Fact and Norm in Personally Committing Offense: Reconsider the Institution from Function

亲手犯概念的产生是为了裨补共同犯罪体系产生的缺陷。共同犯罪体系将正犯既遂的结果归属于没有实施构成要件的人,用以填补处罚漏洞。但是,共同犯罪理论体系是建立于规范基础之上的,难免与存在论相抵牾,尤其在有些"一身专属"的犯罪上更为明显,这些犯罪就被冠以"亲手犯",切断对正犯的归责。但是从规范的角度考察,无论用何种手段,只要达成了法益侵害的结果,都可以在规范上被归责,因此没有"亲手犯"概念存在的必要。有些犯罪不能表现为间接正犯的形式,要么就是没有发生法益侵害,要么在现实中难以操作,但这不代表在法律上不能评价为间接正犯。

Personall committing offense is set to remedy the defect of complicity system. Complicity system is set to attribute the result of principal offender completion to people who don＇ t commit constitutive requirements to remedy the leak of punishment. Howev- er, complicity system is based on the norm and unavoidably has contradictory with fact, especially obvious on some crimes which have ＂particularity＂. These crimes are called personally committing offense to cut the attribution on principal offender. From the norm, no matter which way is used, as long as legal infringement is formed, the person can be blamed in norm, thus there is no need to keep the concept of personally committing offender. Some crime can not represent the side of indirect guilt either because there is no loss of legal interest or hard to conduct in reality, which does not mean that it can not be commented as indirect guilt in law.