不作为的共同犯罪

Joint Crime of Omission

不作为的共同犯罪如何区分正犯与共犯,可提出以下判断标准:若待归责的行为实现了相关构成要件,且不作为者具备必要的正犯者身份与主观构成要件要素,该行为会被论以正犯而受处罚。相反,若待归责的行为只是具备了教唆犯或帮助犯的要件,只能将这一行为评价为共犯。具体来讲:守卫型保证人有责任保护第三人不遭遇危险或不受到侵害,且能防止直接正犯者实施作为,他对此负直接正犯者的刑事责任。若第三人的行为是教唆犯或帮助犯,保证人的不作为是共犯;对某法益负责的保护型保证人有义务防止他人实施犯罪却没有防止,其行为成立直接正犯。若他人行为是教唆犯或帮助犯,保证人的不作为是共犯。

As for how to distinguish from perpetrator and accomplice in joint crime,we can pose a judgment standard as follows：if a responsible act has fulfilled rational component,and the conductor of omission has a necessary identity of conductor of perpetrator and subjective elements of component,this act would be treated as perpetrator and penalized.In contrast,if a responsibleact has only fulfilled the component of abettor or accessory,we can only treat the act as accomplice.Concretely,if a guarantor of guard type has a responsibility to protect the third person from danger and harm,and he can prevent the conductor of direct perpetrator to implement conduct,he has a criminal responsibility of the conductor of direct perpetrator.If the conduct of third person is abettor or accessory,the omission of guarantor is accomplice;if a guarantor of protection type who is responsible for a legal interest has obligation to prevent someone others to implement a crime,his conduct is direct perpetrator.If the conduct of the third person is abettor or accessory,the omission of guarantor is accomplice.