论文部分内容阅读
世界各国刑法关于犯罪参与体系的立法存在着“区分制”与“单一制”的对立。区别两种犯罪参与体系的关键在于立法上是否将参与人区分为正犯与狭义的共犯两种不同的犯罪类型。因区分制具有能够深入地揭示现实生活中所存在的纷繁芜杂的共犯分工现象,适合于构筑“构成要件为中心”的法治国的刑法基础以及能够合理地限定共犯的处罚范围等诸多优点,在制度的层面上更具妥当性。在解释论上,中国的犯罪参与体系的性质可归结为区分制。不同于德、日刑法对参与人类型与参与人程度进行单层次操作的区分制模式,中国刑法采取的是区分参与人类型与参与人程度的双层次操作的模式,即在以分工为标准将参与人区分为正犯、组织犯、教唆犯、帮助犯等不同犯罪类型的基础上,进一步地以作用为标准对参与人作了主、从犯之分。两种分类方法并存不悖,且功能各异。
The legislation of criminal law in all countries in the world about the system of participation in crime has the opposite of “distinction system” and “unitary system”. The key difference between the two crime participation systems lies in whether the law separates the participants into two different types of criminals: the guilty conscience and the narrow complicity. Because of the distinguishing system has many advantages such as the criminal law basis that can reveal the complicated and complicated accomplice division in real life, the legal basis suitable to construct “constitutional elements ” and the range of penalty which can reasonably limit the accomplice , At the institutional level more appropriate. In interpretative theory, the nature of China’s system of criminal participation can be attributed to a system of distinction. Different from Germany and Japan criminal law to participate in the type of participants and the level of single-level operation of the differentiated model, the Chinese criminal law is to take part in the participation of both human and participant levels of the two-level operation mode, that is, in the division of labor as a standard On the basis of distinguishing the participants as different types of criminals such as regular criminals, perpetrators, instigators and assisting criminals, the participants were further divided into principal and perpetrators on the basis of their roles. The two classification methods co-exist, and have different functions.