多元化网络共犯行为的刑法规制路径体系之重构

Research on the System Reconstruction of the Pluralistic Paths of Criminal Regulation of Cyber Accomplice

当前我国对于网络共犯行为存在追究共犯责任、共犯正犯化责任、不作为正犯责任以及扩大化解释适用既有罪名等四种刑法规制路径。然而由于法条的特别规定、规制理论基础的同一、扩张解释方法的普遍运用等原因,其彼此在适用范围上存在着不同程度的交错,由此导致司法适用随意、罪名架空并僭越了刑法基本原则。最好的解困办法并非只保留一种规制路径,因为新增的共犯正犯化路径在行为性质评价和刑事处罚效果上均具有一定意义,不作为正犯路径则因其独特的构造和要件设置显示出存在价值,扩大化解释路径亦有助于缓解网络时代犯罪与刑法的紧张关系。故应当在维持多元化规制路径体系的基础上,以司法优先立法跟进、避免处罚空隙并求得量刑合理性为原则,对网络共犯行为确立共犯路径为主、其他路径为辅的刑法规制路径序位,同时进一步修正共犯理论并对分则相关罪刑条文作重新解读,以回应网络共犯异化的现实。

At present, there are four ways to regulate cyber accomplice in our country, namely, investigating the responsibility of accomplices, treating accomplices as perpetrations, investigating the responsibility of principal offenders of nonfeasance, and expanding the interpretation of existing charges. However, due to the special provisions of the law, the same theoretical basis of regulation, and the widespread use of expansive interpretation methods, there are different degrees of interlacing situations in their scope of application, which lead to arbitrary judicial application, the overriding of charges, and a certain degree of violation of the basic principles of criminal law. Retaining only one regulatory path is not the best solution, because the new path of treating accomplices as perpetrations has certain significance in the evaluation of the nature of behavior and the effect of criminal punishment, the path of investigating the responsibility of principal offenders of nonfeasance shows its existence value because of its unique structure and component settings, and the path of expansive interpretation also helps to ease the tension between crime and criminal law in the internet era.Therefore, on the basis of maintaining a pluralistic regulatory path system, we should follow up with the principles of taking the judicial precedence prior to legislation, avoiding the penalty gap and obtaining the rationality of sentencing, and establish the order of the criminal law regulation paths for the cyber accomplice,which is mainly composed of accomplice path and supplemented by other paths. Meanwhile, we should revise the theory of accomplice, re-interpret and fine-tune the criminal provisions of the relevant crimes in order to respond to the reality of the alienation of accomplices on the Internet.