单一正犯理论证成:从共同过失犯罪切入

The Justification of the Unitary Principal Offender System: from the Perspective of the Offense of Joint Negligence

共同故意犯罪案件只是犯罪参与案件类型之一。共同过失犯罪案件属于犯罪参与案件而非同时过失犯罪案件。我国《刑法》总则无过失共同正犯规定,采取区分制体系处理共同过失犯罪案件于法无据。采取共犯体系二元论处理犯罪参与案件固然能够解决某些问题,但是,其提出伊始便陷入逻辑矛盾、忽略理论体系内在统一、同我国不区分故意正犯和故意共犯的立法现实相冲突的困境。我国《刑法》在所有犯罪参与案件中不区分正犯和共犯,对第25条第2款可以作出如下解读:二人以上共同过失犯罪,不以共同犯罪论处,但是,如果过失犯罪是法律有规定的,他们就应当负刑事责任,按照他们所犯的罪分别处罚。

The case of joint intentional crime is only one of cases of criminal participation.Cases of joint negligence crime belong to cases of criminal participation,not cases of the simultaneous offender.General Principles of China’s Criminal Law does not stipulate the negligent joint offender,so that it is not feasible to deal with cases of joint negligence crime in the differentiating system.Adopting the dualism of the accomplice system to deal with cases of criminal participation can solve some problems,but logical contradiction exists from the beginning.It does not ensure the internal unity of the theoretical system,and it conflicts with the legislative reality that there is no difference between principal offenders and accomplices in China.China’s Criminal Law does not distinguish principal offenders and accomplices in all cases of criminal participation,so that the single system can be adopted to interpret the Paragraph 2 of Article 25 of Criminal Law.Accordingly,that paragraph should be interpreted as follows:A negligent crime committed by two or more persons jointly is not to be punished as a joint crime.However,those who should bear criminal responsibility are to be punished separately according to the crimes they have committed if negligent crime is stipulated by law.