共同犯罪的认定方法
张明楷共同犯罪的认定方法
Method for Determination of Joint Commission of a Crime
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：共同犯罪;认定方法;不法;正犯;因果性
英文关键词：joint commission of a crime;method of determination;illegality;principal;causation
中文摘要：
我国认定共同犯罪的传统方法，存在不区分不法与责任、不区分正犯与狭义的共犯、不分别考察参与人行为与正犯结果之间的因果性等三个特点，这种认定方法导致难以解决诸多复杂案件。认定共同犯罪应当采取相反的方法：其一，共同犯罪的特殊性仅在于不法层面，应当以不法为重心认定共同犯罪；至于其中的责任判断，则与单个人犯罪的责任判断没有区别。其二，正犯是构成要件实现过程中的核心人物，应当以正犯为中心认定共犯；当正犯造成了法益侵害结果（包括危险）时，只要参与人的行为对该结果做出了贡献，就属于不法层面的共犯。其三，只有当参与人的行为与正犯结果之间具有因果性时，才承担既遂犯的刑事责任，故共同犯罪的认定应当以因果性为核心。完全没有必要提出和回答“共同犯罪犯的是什么罪”之类的问题。在刑法理论与司法实践中，可以淡化“共同犯罪”概念。
英文摘要：
The traditional method of determining joint commission of a crime in China has the following three basic characteristics: non-differentiation between illegality and liability, non-differentiation between principal and secondary participants, and non-examination of whether joint offenders' actions have causation with relevant results. Such tradition method makes it difficult to solve many complicated cases. As a matter of fact, exactly the opposite method should be adopted for the determination of joint commission of a crime. Firstly, the particularity of joint crime lies only at the level of illegality, and therefore illegality should be emphasized as the core in the determination of joint commission of a crime. As to the determination of liability in a joint crime, it is not different from that in a sole crime. Secondly, since the principals are the key figures in the commission of an offence, they should be placed at the center of determination of joint commission of a crime. As far as the principals' act has caused the infringement (including endangerment) of legal interest, any other participant whose act contributes to such infringement is a joint offender at the level of illegality. And thirdly, causation is the core issue in the theory of joint commission of a crime. A participant can be held liable as a consummated offender in a joint crime only if his act has causation with the result of the act of the principal. Therefore, the determination of a joint offender should take causation as its core. It is totally unnecessary to raise and answer such question as "what is the crime committed in the joint commission of crime?" In criminal theories and judicial practices, the concept of "joint commission of a crime" can also be weakened in this sense.
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