论角力性网络犯罪的正犯归责进路

On the Way of Principal-Offender Blame in Competitive Relationship Internet Crime

共犯正犯化立法修正了网络归责框架,但同时凸显诸多问题。实质正犯概念重塑了单一制正犯的形象,正犯的基础性责任认定不明,传播性理论衍生出强制归责的危机。我国适用正犯与共犯相区分的双层次分类制,网络犯罪中共犯行为对于结果的实质贡献,影响正犯行为与结果间因果链条的坚实程度和正犯责任之分担,因而正犯与共犯可通过双层分类制构建角力性关系。角力性关系中的正犯归责应当在客观的因果关系中引入危险性判定,在主观上强调真实预见可能,据此方可对网络犯罪规制有所裨益。

The legislation which makes accomplice become principal offender amends the frame of network responsibility, yet in which various questions appear. The concept of substantive principal-offender reshapes the image of single principal-offender, the vagueness in the basic responsibility of principal-offender, and the mandatory responsibility crisis caused by the communication theory. Our country is suitable to the double classification which distinguishes principal-offender and accomplice. The substantive contribution to the result made by the accomplice in Internet crime influences the solid degree of the causal chain between principal offender and result, as well as the of partake of principal-offender responsibility. Therefore, the principal-offender and the accomplice can construct a competitive relationship through double classification. The principal-offender responsibility in a competitive relationship should bring risk determination to the objective causal relationship, and emphasize the possible real foresee subjectively. Only after that, the regulation of Internet crime can get abundant benefit.