《刑法》第29条第1款后段的教义学分析——兼与付立庆教授商榷

A Dogmatic Analysis of the Latter Section of 1st Paragraph of 29th Article of the Criminal Law——A Discussion with Professor Fu Liqing

从目的论解释的角度出发,有必要将未达到刑事责任年龄者实施的法益侵害行为,解释为《刑法》第29条第1款后段中的"犯罪",即不法意义上的犯罪;在区分不法与罪责的基础上,承认有些场合下的"犯罪"包括了无罪责的不法行为,也完全符合"犯罪"一词的通常用法。但是,在某些条款中将犯罪解释为行为,只是在区分罪行与罪名、罪质与罪量,并不意味着将犯罪理解为"不法意义上的犯罪"。以未达到刑事责任年龄者事实上可能具备了规范意识为由,将引诱其犯罪者认定为教唆犯,有损法的安定性。原则上将引诱未达到刑事责任年龄者犯罪的人认定为间接正犯,并不违反限制从属性说。第29条第1款后段中的"教唆",是广义的教唆,其含义与第301条第2款中的"引诱"相同,包括了第347条第6款中的"利用、教唆"这两种情形。因此,引诱未达到刑事责任年龄者犯罪的间接正犯,虽然不成立教唆犯,但其利用行为仍属于广义的教唆,应当从重处罚。

From the perspective of Teleology, it is obliged to ascribed the act of legal interest violation committed by whom has not reached an age of criminal responsibility to ＂commit a crime＂ regarding the latter section of 1 st paragraph of 29th article of the Criminal Law, namely, the unlawful offence;based on the distinction between unlawful and criminal re- sponsibility, admitting that ＂commit a crime＂ including the inculpable unlawful act under certain circumstances completely comforms to its accepted explnation. However, there are articles and paragraphs describing ＂commit a crime＂ as an action, which simply distinguishes offence from accusation, character of crime from quantity of crime, rather than the interpretation of ＂unlawful offence＂. On the grounds that the one has not reached an age of criminal responsibility may in fact have pos- sessed consciousness of normality, identifying a person tempting someone who has not reached an age of criminal responsi- bility as an instigator can cause harm to the certainty of laws. In principle, convicting such person who tempts another who has not reached an age of criminal responsibility of the indirect guilt does not violate the Theory of Restriction Dependency. The term ＂instigate＂ in the latter section of 1 st paragraph of 29th article refers to a broad conception, whose explanation is similar to ＂entice＂ in 2nd paragraph of 301st article with two situations - - ＂makes use of or aids and abets＂ in 6th para- graph of 347th article. As a matter of face, although the indirect guilt by tempting people who have not reached an age of criminal responsibility to commit a crime cannot be determined as instigating, its purpose and intention still fit the broad conception of instigation, thus, it should be given grievous penalties.