论正犯标准的规范性重构--从“实际作用”转向“规范能力”

On the Normatively Reconstruction of the Standard of Core Offender:From "Post-Effect" to "Normative Ability"

相较于直接进入量刑层面的单一制,区分制于定罪阶段先期实现了对参与行为的差异性规范评价,真正实现了对共同犯罪的精巧解释。然而,现有的正犯标准,无法彰显区分制的优势。正犯标准实质化的路径以"重要作用"、"犯罪事实支配"这类具有偶然性的事后作用为准据,非但无法识别参与行为的规范性差异,反而导致正犯类型和主犯概念不分、区分制与单一制趋同的被动局面。回归形式标准的解决路径,更是忽视了正犯类型的规范属性,实为理论的倒退。为真正彰显区分制的体系优势,应将正犯标准从行为后的"实际作用",转向行为时的"规范实现能力"。这一指向构成要件的具体的行为能力,能够真正体现正犯区别于主犯的独立个性,而且是认定正犯的唯一的规范性标尺,其既不承认存在不同的正犯类型,亦不认同正犯的直接-间接模式。

Compared with the unitary system of joint crime which directly enters into the stage of sentencing,the differentiated system which distinguishes between core offender and accomplice in joint crime has accomplished different normative evaluation of the participative behaviors in the stage of crime constitution in advance,thus realizing the comprehensive and exquisite explanation of joint crime in particular. However,the existing standards about the distinction between core offender and accomplice just can not show the advantages of the differentiated system. The substantiality of the concept of core offender is based on accidental effect of post-event such as "important role" or "domination of the facts," which not only fails to identify the normative differences in participative behaviors,but also leads to assimilation of the concept of core offender and principle offender,and the convergence of the unitary system and the differentiated system. The approach of returning to the formal standard ignores the normative character of the core offender even more,and is actually a regression in theoretical development. In order to consolidate and highlight the advantage of the differentiated system,the standard of core offender should be changed from "post-effect" to "behavior ability during the happening," which can manifest the independent character of the core offender. The standard of "behavior ability to realize the crime constitution" is the only norm for identifying the core offender,neither the existence of different types of core offenders nor the direct-indirect mode of core offender are acknowledged.