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中国的刑法总则中第二章第三节规定了“共同犯罪”的概念。日本刑法只规定了共同正犯的概念及其处罚。而共谋共同正犯是日本判例确立的概念。反对共谋共同正犯的观点曾一度占据主导地位,但判例很早便肯定了共谋共同正犯的存在,日本学界现在也基本上不再存在异议。本文从中日两国的刑法比较入手,对日本刑法中的共同正犯以及中国刑法中的共同犯罪进行了解读,对于日本刑法中关于区分正犯与共犯问题,以及对于有关共同正犯以及共谋共同正犯的各学说、理论进行了介绍并予简单的评析,进而从正犯与共犯的区别这一角度来做些探讨。
Chapter III of Chapter II of the General Principles of Criminal Law in China provides for the concept of “common crime.” The Japanese criminal law only stipulates the concept of common principal offenders and their penalties. The complicity of common criminals is the concept established by Japan’s jurisprudence. The view that conspiracy to seek common common criminals once dominates, but the precedent affirmed the existence of conspiracy to be a common principal offender. There is basically no longer any objection in Japanese academia now. This article begins with the comparison of the criminal law between China and Japan, and analyzes the common principal offenses in Japanese criminal law and the common crimes in Chinese criminal law. It is of great significance to the Japanese criminal law that the distinction between the offenders and accomplices, as well as the common offenders and conspirators The theories and theories are introduced and briefly analyzed, and then the discussion is made from the perspective of the difference between the principal offender and the accomplice.