犯罪参与类型再思考——兼议分工分类与作用分类的反思

犯罪参与类型的设置在本质上是对构成要件符合性的解释,以此为理论基点,在犯罪参与立法上形成了一元参与体系与二元参与体系。在二元犯罪参与体系之下,以犯罪事实支配理论为代表的实质客观说形成了正犯界定的实质化倾向,但此种理论学说完全颠覆了其赖以建立的前提即基本构成要件与修正构成要件之间的制度性区别。我国刑法学界传统观点在共犯人类型上形成的分工分类法与作用分类法的认识过于表面化,对于犯罪参与类型与构成要件之间的关联应为学界研究的重点。

Reconsideration of Types of Participation in Crimes

The establishment of types of participation in crime serves as the explanation for determining constitutive requirements.Based on this theoretical understanding,legislation on participation in crime is divided into two systems:monist participation and dualistic participation.Under the system of dualistic participation in crime,the notion of substantive objective reality based on the theory of stressing criminal facts has formed a substantial trend in defining principal offender.However,this theory has completely negated the premise on which it is depended,namely,the systematic distinction between the basic constitutive requirements and the amendatory constitutive requirements.The traditional standpoint supported by criminal law circle in China emphasizes the approach of division of responsibility and classification and the approach of classification of role played by offender.Such standpoint is too superficial.The author concludes that connections between types of participation in crime and constitutive requirements should be taken as the focus of future study.