浅析共犯关系脱离的认定

Analysis of the Determination of the Detachment of Accomplice Relationship

对于共犯关系脱离的问题,我国目前刑法学界的主流观点和司法实践均认为共犯关系脱离不仅需要具备自动性,还应具备有效性。一旦整个共同犯罪归于既遂,即使部分共犯自动中止犯罪行为,甚至积极地阻止犯罪结果的发生、消除自己先前行为对共同犯罪的影响,只要没有有效地阻止犯罪既遂,也不能成立犯罪中止,因而需要面临犯罪既遂之较重的罪责。这一观点固然对于打击共同犯罪有一定意义,符合刑罚的报应观念,但是对于作出犯罪中止行为的共同犯罪人来说,其主观恶性较低,在客观上也做出了减轻损害结果的努力,对其加以与其他共同犯罪人同样程度的刑罚,有罪刑不相适应之嫌。因此,对于实施了犯罪中止行为但未能有效阻止犯罪结果发生的共犯人,可基于其主动切断共犯关系的现实效果和内心意愿,以未遂犯论处。但是对于共犯关系脱离的认定仍然存在许多争议。本文从三个部分对该问题进行探讨。第一部分对共犯关系概念以及主流学说进行梳理,第二部分讨论共犯关系与相关概念的联系与区别,第三部分具体讨论不同情形下共犯关系成立需要满足的条件。

The mainstream view and judicial practice in China’s current criminal law community believe that the separation of accomplices not only requires automation, but also effectiveness. Once the entire joint crime is completed, even if some accomplices automatically suspend their criminal behavior, actively prevent the occurrence of the crime result, and eliminate the impact of their previous actions on the joint crime, as long as the crime is not effectively prevented from being completed, the crime cannot be terminated, and therefore they need to face the heavier criminal responsibility of completed crime. This viewpoint is of certain significance for combating joint crimes and conforms to the concept of retribution in punishment. However, for joint offenders who commit acts of criminal cessation, their subjective malignancy is relatively low, and they have made efforts to reduce the damage objectively. They are subject to the same level of punishment as other joint offenders, which may be incompatible with the crime and punishment. Therefore, for accomplices who have committed a criminal cessation act but have failed to effectively prevent the occurrence of criminal consequences, they can be punished as attempted offenders based on their actual effect of actively cutting off the accomplice relationship and their inner intention. However, there are still many controversies regarding the determination of detachment from the accomplice relationship. This article explores this issue from three parts. The first part reviews the concept of accomplice relationship and mainstream theories, the second part discusses the connection and differences between accomplice relationship and related concepts, and the third part specifically discusses the conditions that need to be met for the establishment of accomplice relationship in different situations.