对强奸罪中轮奸、共犯既未遂问题的思考

目前刑法理论界对于强奸罪中轮奸的成立要件及其是否存在着既遂、未遂问题的观点不一。笔者试图通过一个案例来引出自己的观点，即轮奸作为强奸罪的一种加重处罚的情形，其本身不是单独罪名，故不存在既、未遂的提法，而是应以其轮奸行为是否实际发生作为该款项成立的依据。同时，传统的刑法理论通说认为，共同犯罪中的犯罪完成形态只能是整体既遂或整体未遂，即既遂後不存在部分未遂或中止的可能。笔者认为，在特殊共同犯罪中，基于某种实行犯的行为的不可替代性，故仍应存在部分个体未遂或中止的可能，这是对普通共同犯罪中“部分行为全体负责”这一原则的必要例外与补充。

Thinking about the gang-rape,accomplishment and unaccomplishment in joint offense of the crime of rape

The criminal theory at present to the elements of the establishment of gang-raped in the crime of rape and whether there is accomplishment or unaccomplishment are not unified. This essay tries to lead a case to the view that, gang rape as one kind of crime of rape aggravating punishes, itself is not single-handed accusation, therefore not existing the form of accomplishment or un-accomplishment, but whether there is actual gang-rape should be as the basis for the establishment of the activity. At the same time, the traditional theory of criminal law said that, the complete form of crime in joint offense can only be accomplishment or unaccomplishment as a whole, that is, there is no possible of un-accomplishment or suspension after accomplishment occurs. In particular joint offense, based on the implementation of certain acts committed by the irreplaceability, it should still exist possibility of partly unaccomplishment or suspension, it is the necessary exception and addition to the principle of ＂part behavior, whole be responsible＂ in joint offense.