先前行为与实行过限下知情共犯人的刑事责任
姚诗先前行为与实行过限下知情共犯人的刑事责任
Criminal Liability of Informed Accomplices in Excessive Offense Based on Prior Conduct Theory
期刊名称：《法学研究》
期刊年份：
作者：姚诗
单位：湖南大学法学院
中文关键词：先前行为;实行过限;共犯人;作为义务
英文关键词：prior conduct;excessive offense;accomplices;duty to act
中文摘要：
明知实行犯实施超出共同谋议的行为，共犯人既不参与也未阻止的，对共犯人刑事责任的认定应舍弃容忍说而采取义务说，即以共犯人是否有阻止义务来判断其应否承担不作为的刑事责任。共犯人的作为义务源自先前行为，有必要准确把握先前行为的性质和特征,以合理确定义务范围。先前行为理论上存在因果关系说和义务违反说的对立，原则上宜采取义务违反说；在先前行为的主观方面，不要求行为人对危害结果有预见可能性；在客观方面，应将先前行为分为监督危险源和保护法益两种类型分别考察：对前一类型，应根据共犯行为与过限行为是否具有直接违法关联，共犯行为是否促使过限行为发生来判断共犯人有无作为义务；对后一类型，应以共犯人是否使被害人陷入需保护状态来判断其有无作为义务。
英文摘要：
While a perpetrator commits crime beyond their orignial joint plan and the informed accomplices neither participate in nor prevent such crime, the duty principle, instead of the tolerance principle, should be applied to the decision of the criminal liability of the accomplices. That is to say, the omission liability of excessive crime for the accomplices depends on whether they have duty to prevent the perpetrator’s excessive crime. In this paper, the duty to act of the accomplices is studied from the perspective of prior conduct theory. Therefore, it is necessary to examine the nature and characteristics of prior conduct to decide the scope of duty to act reasonably.There are two divergent viewpoints in the prior conduct theory. The one holds the opinion that causality doctrine is better to explain the nature of prior conduct. The other viewpoint thinks that obligation-violation doctrine is more appropriate for the explanation. In principle, obligation-violation doctrine is adopted in this paper. In the subjective aspect of prior conduct, it is not required for actors to foresee the harmful consequence. While in the objective asepct, prior conduct should be divided into two types, i.e., the type of risk source supervision and the type of legal interest protection, which should be investigated respectively. For the type of risk source supervision, the duty to act of the accomplices is based on the judgement whether there is direct connection of illegality between the joint offense and the excessive offense, and whether the advent of the excessive offense is attributed to the joint offense. While for the type of legal interest protection, the duty to act of the accomplices is based on the judgement whether victims are in the status of need of protection, which is engendered by the accomplices.
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