共犯人关系的再思考
张明楷共犯人关系的再思考
Rethink on the Relationship Among Joint Offenders
期刊名称：《法学研究》
期刊年份：
作者：张明楷
单位：清华大学法学院
中文关键词：joint offenders; the principal; joint principals; the abettor
英文关键词：joint offenders; the principal; joint principals; the abettor
中文摘要：
刑法总则规定了哪些参与人，刑法对共犯人如何分类(参与类型)，是两个不同的问题。我国刑法总则虽然规定了主犯、从犯、胁从犯与教唆犯四种情形，但不能据此认为这四种情形就是对共犯人的分类。刑法理论必须以罪刑法定原则为根据，确定刑法总则应当规定哪些参与类型。由于刑法分则规定的是正犯，所以，只有当刑法总则规定了教唆犯、帮助犯时，才能扩张地处罚教唆犯与帮助犯，否则便违反罪刑法定原则。由于共同正犯不以实施构成要件行为为前提，所以，如果对共同正犯按照正犯处罚，就必须有刑法总则的明文规定。主张刑法第26条规定的主犯与正犯是交叉关系、递进关系或者等同关系以及双层次区分说的观点，都存在缺陷。刑法第26条是关于共同正犯的规定，该规定贯彻了“部分行为全部责任”的原理。教唆他人犯罪的，如果在共同犯罪中起主要作用，就属于(共谋)共同正犯，按正犯处罚；如果起次要作用，则是狭义共犯中的教唆犯，应当按从犯量刑。基于实质标准，对起次要作用的实行者，也只能按从犯处罚。
英文摘要：
Which participants in criminal offences are joint offenders prescribed in the General Provisions of the Chinese Criminal Law and how to create distinct categories (forms of participation) of joint offenders are two different questions. Although four forms of participation in a crime, namely as principal, accomplice, coerced accomplice and abettor, are provided for in the General Provisions of the Criminal Law, they should not be regarded as the categories of joint offenders. The criminal law theory should determine the forms of participation prescribed in the General Provisions of the Criminal Law on the basis of the principle of legality. Since the Specific Provisions of the Criminal Law provide for criminal offences committed by principals, only when the General Provisions of the Criminal Law provides that the act of abetting and aiding the commission of a certain crime constitutes a joint offence, can such act be punished in an expanding way. Otherwise, the punishment would contravene the principle of legality. Since the determination of joint principals does not take an act of constitutive element as the premise, the punishment of a joint principal as principal must be based on explicit stipulations of the General Provisions of the Criminal Law. The viewpoints holding that the prime perpetrator and the principal provided in Article 26 of the Criminal Law are in a crossing-cutting, progressive, or equivalence relationship, or in a double-layered differentiating system all have theoretical defects. Article 26 of the Criminal Law should be deemed as an article on joint principals that embodies the theory of “full responsibility for partial act”. For those who intentionally induce others to commit a crime, if they plays a major role in the joint crime, they should be considered as joint principals acting on a common plan and be sentenced as principals; if they play a secondary role in a joint crime, they should be considered as abettors and be sentenced as accomplices. Based on the substantive standard, those who play a secondary role in a joint crime can only be sentenced as accomplices.
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