摘要
共犯从属性说、独立性说与二重性说一致认为:共同犯罪是数人共犯一罪,共同犯罪行为是数人共为一个整体的犯罪行为。这三种学说面临的共同问题是其都不能正确揭示行为、罪数与处罚之间的辨证关系。根据犯罪构成基本理论,共同犯罪行为是数人数行为而不是数人共为一个整体的犯罪行为;共同犯罪是数人数罪而不是数人一罪。将正犯的实行行为评价为共犯行为的一部分不仅可能而且正当。只有将共同犯罪界定为数人共犯数罪,才能彻底厘清共同犯罪与犯罪构成之间的辩证关系,从而能够维护整个刑法理论体系的完整性与科学性。
there are two different disputes on the essence of accomplice, which is the theory of accomplice dependency and accomplice independency. Despite many aspects of the two theories come to different conclusions, they agree that complicity is one crime performed by the number of people and the act of complicity is one act commited by many people. But the two theories can＇ t account for the dialectical relationship between act, crime and punish- ment. It is considered that, according to the standard of criminal constitution, the essence of complicity is defined as concurrence of plural perpetrating acts, which are composed of several counts and fall within the scope of substantive crime, this is not only consistent with the essence of the complicity, but with the principle of nullun crimen sine lege,thus to make the punishment fit the crime. Only when the complicity defined as an accomplice commited by several crimes, can completely be clarified the accomplices and the dialectical relationship between them with a view to safeguarding the integrity of the system of criminal law and theory.
出处
《西北大学学报（哲学社会科学版）》
CSSCI
北大核心
2008年第2期80-87,共8页
Journal of Northwest University：Philosophy and Social Sciences Edition
基金
湖南省教育厅2006年基金项目(06C858)
关键词
共同犯罪
数行为
数罪
刑法
complicity
plural perpetrating acts
concurrence crimes
criminal law
