司法工作人员与无身份者共同实施真正身份犯的共犯成立类型

根据共犯处罚根据论中的修正的惹起说,以及对实行行为的实质理解,在无身份者参与司法工作人员实施的真正身份犯的犯罪行为的场合,无身份者不仅可以构成教唆犯或者帮助犯,而且还可以构成共同正犯。甚至无身份者还完全可以利用司法工作人员实施犯罪,构成真正身份犯的间接正犯,不过这种场合下司法工作人员不构成犯罪,二者不再构成共同犯罪。在司法工作人员参与无身份者实施的真正身份犯的犯罪行为时,司法工作人员只能构成间接正犯,而不能构成教唆犯,无身份者只能构成帮助犯,不能构成实行犯。

On Types of Accomplices in Special Status Crimes Committed Jointly by Judicial Officers and the Offenders without Special Status

On one hand,by the modified provoking theory,one of the theories which is named foundations of punishment on accomplices,and according to the substantial interpretation to accomplishment conduct,the participators without special status who participate the crimes committed by the judicial officers which can only be committed by an offender with special status,can not only be identified as abettors or assistors but also be recognized as joint principal offenders.The participators without special status can be interpreted as indirect principal offenders sometimes,when availing himselfherself of the judicial officers to accomplish a crime.The judicial officers can not be condemned as accomplices with participators without special status,because hisher conduct can not be interpreted as a crime on such situation.On the other hand,when the judicial officer participates a crime committed by the offender without special status,heshe can only be condemned as an indirect principal offender but not as an abettor,and the offender without special status must be interpreted as an assistor but not as a principal offender.