共同犯罪司法扩张现象之批评——以律师与当事人形成共犯为视角

Criticism on the Judicial Expansion of Joint Crime

当前的刑法理论和司法实务界普遍认为,如果行为人明知他人正在实行犯罪,客观上实施了对犯罪结果有帮助作用的行为,就可以认定该行为人构成共同犯罪。鉴于此,律师被指控与当事人形成共同犯罪的案件屡见于报道,并由此引发了广泛的争议。共同犯罪的认定在司法实务中有不断扩张之趋势,主要原因在于把主观上的"明知"等同于共同犯罪中的"通谋",对于片面合意认定为共同犯罪。另外对于中立的帮助行为与帮助犯之间的界限也并未厘清。为了更好地体现刑法人权保障之功能,应当依照刑法总则关于共同犯罪的规定,严格把握共同犯罪人的成立条件。即便帮助者构成犯罪的,也应当根据其主观故意以及客观行为确定相应罪名,而未必与实行者构成相同的犯罪。

It is generally believed in the current criminal law theory and judicial practice that if the perpetrator knows that others are committing a crime and objectively implements an act that is helpful to the result of the crime, the perpetrator can be identified as a joint crime. In view of this, the cases that lawyers are accused of forming a joint crime with the parties are often reported, which has caused extensive disputes. The main reason is that the subjective "knowing" is equal to the "conspiracy" in the joint crime, and the unilateral agreement is identified as a joint crime. In addition, the boundary between the neutral helping behavior and the accomplice has not been clarified. In order to better reflect the function of human rights protection of criminal law, we should strictly grasp the conditions for the establishment of joint offenders in accordance with the provisions on joint crime in the general provisions of criminal law. Even if the helper constitutes a crime, we should determine the corresponding crime according to his subjective intention and objective behavior, but not necessarily constitute the same crime as the doer.