正犯与共犯之区别

德、日、韩等国家的共犯论体系是以正犯为中心建立起来的,共犯是以正犯为其前提的概念。刑法以分工分类法对共犯人进行分类,正犯不仅是其中的核心概念,也是共同犯罪定罪、量刑的中心。因此,在共犯论中,最基本的问题便是怎样区分正犯与共犯。在我国的刑法理论中,并没有正犯概念,我国刑法将参与共同犯罪的行为人分为组织犯、主犯、从犯、胁从犯和教唆犯。有关正犯与共犯的区分问题,在我国的刑法理论界,有规范性实行行为说和实质客观说之争,虽然重要作用说具有相对合理性,但是,在共犯论体系不同的语境之下,探讨两者的区分,可谓无奈之举。这一问题的根本解决,最好是在修订刑法条文时,规定相关条款。

The Differencies Between Perpetrator and Accomplice

The theory of complicity in Germany, Japan and Korea is based on the theory of perpetrator, and the concept of accomplice is also on basis of the concept of perpetrator. The criminal law divides the joint criminals by taxonomy based on division of labor, in which perpetrator is not only a core concept, but also the center of the conviction and sentencing. Therefore, in the scope of complicity, the fundamental issue is to distinguish perpetrator from accomplice. In our domestic criminal law theory, there is no concept of perpetrator, instead, we divide joint criminals into prin- cipal offender, accessorial offender, coerced offender and abettor. There is a debatement between normative theory of perpetrating act and theory of substantial objectivity when we try to divide perpetrator and accomplice domestically. Although the theory of vital function is relatively reasonable, it is still a non-optional choice to discuss the issue under different complicity systems. To solve the issue ultimately, we should enact relative provisions when amended criminal law.