胁从犯存废论

胁从犯是我国刑法特有的规定。胁从犯的存在有违背责任原则之虞,并且不利于"统一法秩序"的构建。基于心理动因、刑罚目的、谦抑精神、司法实践等方面的反思,当法律无法强求受胁迫者拒绝实施犯罪行为,亦即受胁迫者欠缺合法行为的期待可能性时,就不应追究受胁迫者的刑事责任。因此,胁从犯的规定是不必要的,可以考虑予以废除。

On Existence or Abolishment of the Coerced Offender

The regulation on coerced offenders is rather unique in the criminal law of our country .The existence of coerced offenders is likely to violate the principle of liability , being harmful to construction of the“uniform order of law”.With regard to reflections on aspects of motivation , purpose of punishment , spirit of humbleness and judicial practice , where the law cannot require the coerced offender to refuse committing offence, that is, the coerced offender is in lack of expectations of legitimate conducts , and then the criminal liabilities should not be imposed on the coerced offender .Thus regulations on coerced offenders are not necessary and the abolishment thereof should be considered .