行为共同说的法教义学批判

Critics of Legal Doctrine of Theory of Common Behavior

行为共同说与犯罪共同说将共犯本质作为根本分歧。由于决定共犯成立范围,故共犯本质问题有必要再予讨论,且应起步于对共犯本质概念的首先明确,而共犯本质又应在犯罪本质之下获得界说。对应着犯罪本质是罪责性,共犯本质应是罪责共同性而非行为共同性。因在远离有责性即罪责性的"行为层次"上将行为共同视为共犯本质,故行为共同说背离了罪刑法定原则等刑法基本原则和刑法责任原则。在自称的诸多合理性及其对犯罪共同说的各种批判被破解之后,行为共同说在我国还是面临着实定法障碍和刑法基本原则特别是罪刑法定原则障碍。由于将共同犯罪视为"数人数罪"的"乌合之罪",故行为共同说不是共同犯罪的建构理论而是瓦解理论。

The nature of common offense forms the fundamental dispute between theory of behavior commonness and theory of crime commonness. Due to that the nature of common offense decides scope of establishment of common offense, the issue of nature of common offense should be given further discussion, which should start from explicitness of concept of the nature of common offense itself and definited under the nature of offense. Corresponding to that the nature of offense should be guilty,the nature of common offense should be common guilty. Due to that theory of behavior commonness regards behavior commonness as nature of common offense in behavior gradation that is far from guilty gradation, it deviate from the basic principles of criminal law including principle of a legally punishment for a specified crime and responsibility principle of criminal law. Much reasonableness claimed by theory of behavior commonness and all the critiques given to theory of crime commonness by theory of behavior commonness can be broken. In our country, theory of behavior commonness is faced with unbreakable obstacle from positive law finally, which is from the basic principles of criminal law especially prin- ciple of a legally punishment for a specified crime. Due to that theory of behavior commonness regards common crime as a disorderly crowd of several crimes of several people, it belongs to not organizing but disorganizing thoery.