双层区分制下正犯与共犯的区分

世界各国刑法关于共犯体系的立法存在着"单一制"与"区分制"两大类型。中国刑法中的共犯体系在解释论上可归结为区分制,如何区分正犯与共犯亦是中国共犯理论必须回答的问题。在德、日刑法中,正犯与共犯的区分具有同时解决参与人的定罪和量刑的双重功能。在此种单层区分制下,重视参与人在不法事实实现过程中的实质支配力或作用大小的犯罪事实支配理论、重要作用说有其论理上的妥当性。中国刑法对参与人同时采用了分工和作用两种并存不悖、功能各异的分类标准。分工分类标准下的正犯与共犯旨在解决参与人的定性及其间的关系问题,而不直接决定和评价参与人的刑罚轻重,承载量刑功能的是作用分类标准下的主犯和从犯。在这种双层区分制立法模式下,正犯与共犯的界分宜采以构成要件为轴心的实行行为说。

Distinguishing Perpetrator and Accomplice under the Double-layer Differentiating System

In the legislation of the accomplice system all over the world,there are two basic opposite modes,that is,the system of all participants being perpetrators and the system of differentiating between the perpetrator and the accomplice.The nature of the accomplice system in Chinese Criminal Law can boil down to the latter.Therefore,how to distinguish the perpetrator and the accomplice is a problem that also should be solved by Chinese criminal theory. In the Criminal Law of Germany and Japan,the identification of the perpetrator can fulfill two functions,that is to say,distinguishing between the perpetrator and the accomplice serves to convict and sentence the participants at the same time.Under such single-layer differentiating system,the theory concerning domination by criminal facts and the theory of important role which value the participants’ essential power or role in the process of implementing illegal facts are logically appropriate. As to the classification of accomplices,Chinese Criminal Law adopts simultaneously two standards of function and role which co-exist without contradiction and play their role respectively.Under the standard of function,the distinction between the perpetrator and the accomplice mainly aims to solve the problem of the conviction of the participants and their relationship.However,it doesn’t determine and evaluate the participants’ punishment directly,and the principal and the accessorial offender classified according to the role standard perform the function of measuring the punishment.Under such double-layer differentiating system,the distinction of the perpetrator and the accomplice should adopt the theory of the normative perpetrating act which is based on constitutive elements.