论刑法中的中立帮助行为

On the Neutral Assisting Behavior in Criminal Law

日常生活中存在着这样的特殊行为:表面上具有无害的外观,看似不具有刑事违法性,但在实质上对正犯的违法犯罪活动起着助益作用。按照传统帮助犯的构成要件理论,只要行为人主观上存在直接或间接的故意,客观上实行了帮助行为,且行为与结果之间存在刑法意义上的因果关系,行为人便能被认定为帮助犯,其行为也能被认定为帮助行为。但传统帮助犯的构成要件理论并没有考虑到中立帮助行为的特殊性,实际上这类行为属于一般意义上的民事行为且从事正常的业务活动,具有日常生活性、可取代性、反复继续性、非针对特定对象性,因此带来了中立帮助是否具有可罚性的讨论。中立帮助行为因自身所具有的中立性而必然有别于一般的帮助行为,本文从中立帮助行为的基本理论、学说诠释、处罚依据与类型化研究四个方面进行分析,以期对我国中立帮助行为的理论研究与司法实践有所帮助。

In our daiy life, there are such special behaviors that seemingly don＇ t have crimi- nal illegality on the surface of the harmless appearance, but in essence play a helpful role in the criminal activities of the principal offender. According to the theory of the traditional constitutive requirements, the perpetrator can be identified as the accessory with his behavior as the assisting behavior as long as the perpetrator has a subjective existence of a direct or indirect intention and objectively practise a assisting behavior and there is a causation within the meaning of criminal law between his assisting behavior and the result of his behavior. However, the theory of the con- stitutive requirements of the traditional accessory has not taken into account the particularity of the neutral assisting behavior, which belongs to a general sense of civil behavior involved in nor- mal business activities with the characteristic of being seen in our daily life, substitution, repeti- tion, non - specific object - orient. Therefore, whether it belong to a punitive behavior should be in the discussion. The neutral assisting behavior must be different from the general assisting be- havior for its own neutrality and the author will make an analysis of four aspects of the basic theo- ry, the doctrine interpretation, the justification of punishment and the typology of the netural assisting behavior for helping the theoretical research and the judicial practice of Chinese neutral assisting behavior.