双层区分制的理论反思与共犯体系模型的再建构

Reflections on the Theory of the Two-layer Distinction System and Reconstruction of the Accomplice System

面对正犯与主犯的关系问题,双层区分制理论批判了单层区分制理论将定罪与量刑一体化的处理方式,主张在定罪层面采取形式客观标准区分正犯与共犯,在量刑层面采取实质作用标准区分主犯与从犯。然而,形式客观标准存在理论弊端,分层定位的理论构造更是具有内在缺陷,双层区分制已经实质性地沦为了功能意义上的单一制。区分制下的重合式关系模型以及围绕违法与责任所构建的递进式关系模型均存在理论缺陷,不宜作为解释正犯与主犯关系的理论构想方案。应当将作用力的质量区分作为结构支撑,以此构建递进式关系模型。一方面,正犯与共犯的区分建立在犯罪事实支配理论的基础上,是作用力质差的体现,共犯必定是起辅助作用的从犯。另一方面,如果正犯唯一,正犯即是主犯;如果正犯不唯一,再依据作用力的量差在共同正犯中区分起主要作用的主犯与起次要作用的从犯。将作用力的质量区分作为结构支撑的递进式关系模型具有量刑过程精确化、有序化的理论优势。

Faced with the issue of the relationship between the core offender and the principal,the theory of the two-layer distinction system criticizes the integrated approach to conviction and sentencing of the theory of the single-layer distinction system,and advocates adopting the formal objectivity standard to distinguish between the core offender and the accomplice on the conviction level and the substantive function standard to distinguish between the principal and the accessory on the sentencing level.However,the strict formal objectivity theory and the normative formal objectivity theory either ignore the declarative significance of behavior evaluation or fail to adhere to their formal positions completely but turn to the substantive concept of the core offender.As a result,it is not appropriate to use the formal objectivity standard as the standard for distinguishing between the core offender and the accomplice.More importantly,the theory of hierarchical positioning fails to correctly understand the theoretical logic of the hierarchical statutory penalty setting model adopted by the theory of distinction system,and is unable to further demonstrate the differences in the unlawfulness between the core offender and the accomplice in the distinction between the principal and the accessory,resulting in the implementation of the single system in the name of the distinction system by the theory of two-layer distinction system.In addition to the theory of a two-layer distinction system,Chinese criminal law scholars have also proposed other theoretical solutions,but these plans are not suitable theoretical conceptual plans for explaining the relationship between the core offender and the principal.In view of this,it is necessary to establish a progressive relationship model based on the theory of the domination of criminal facts,using the mass differentiation of forces as the structural support.Firstly,a distinction is made between the core offender and the accomplice through the judgment of whether the acting force has dominance.Secondly,in the distinction between the principal and the accessory,if there is only one core offender,he can be determined as the principal,while the accomplice serves as the auxiliary accessory.If there are more than one core offender,it is necessary to further distinguish among the dominant joint core offenders between the principal who plays a primary role and the accessory who plays a secondary role in the crime based on the different magnitude of the acting force,while maintaining the conclusion that the accomplice is the accessory playing an auxiliary role in the crime.Compared to other theoretical models,the progressive relationship model that takes the distinction between masses of forces as its structural support has the theoretical advantage of precise and orderly sentencing.