犯罪参与体系:中国图景下的比较与选择
发布时间：2019-02-28 07:27
【摘要】：对我国大陆地区犯罪参与体系归属的证成需要从解释论与立法论两个维度展开。在解释论上,我国学界形成了"单一制说""区分制说"与"既非单一又非区分制说"三种观点。"既非单一又非区分制说"没有把握犯罪参与体系的本质,不具有妥当性。"单一制说"与"区分制说"在现有的刑法体系下均能够自圆其说,不违反罪刑法定原则。在立法论上,单一制与区分制的价值比较以犯罪论和刑罚论为核心。在犯罪论的功能评价上,二者平分秋色。但是单一制缺少规范化的量刑准据,难以确保法律适用的平等性。就我国现实状况而言,采用单一正犯体系的效果弊大于利,正犯与共犯区分体系依然值得提倡。
[Abstract]:The evidence of the ownership of the crime participation system in mainland China needs to be carried out from two dimensions: interpretation theory and legislation theory. On the theory of interpretation, Chinese academic circles have formed three kinds of views: the theory of monism, the doctrine of differentiation and the theory of neither a single nor a system of distinction. The theory of neither a single nor a distinction "does not grasp the essence of the system of criminal participation and does not have the appropriateness." Under the existing criminal law system, both the unitary doctrine and the distinguishing system can justify themselves and do not violate the principle of legality of crime and punishment. In the theory of legislation, the value comparison between the unitary system and the discriminating system is centered on the theory of crime and the theory of punishment. On the function evaluation of crime theory, the two are equally divided. However, it is difficult to ensure the equality of the application of the law because of the lack of standardized sentencing standards in the unitary system. As far as the reality of our country is concerned, the effect of adopting a single principal crime system is more harmful than good, and the distinguishing system between the principal offender and the accomplice still deserves to be advocated.
【作者单位】： 中国人民大学法学院;
【基金】：中国人民大学科学研究基金(14XNH009) 南开大学资助项目(14BFX064)
【分类号】：D917
，
本文编号：2431619
[Abstract]:The evidence of the ownership of the crime participation system in mainland China needs to be carried out from two dimensions: interpretation theory and legislation theory. On the theory of interpretation, Chinese academic circles have formed three kinds of views: the theory of monism, the doctrine of differentiation and the theory of neither a single nor a system of distinction. The theory of neither a single nor a distinction "does not grasp the essence of the system of criminal participation and does not have the appropriateness." Under the existing criminal law system, both the unitary doctrine and the distinguishing system can justify themselves and do not violate the principle of legality of crime and punishment. In the theory of legislation, the value comparison between the unitary system and the discriminating system is centered on the theory of crime and the theory of punishment. On the function evaluation of crime theory, the two are equally divided. However, it is difficult to ensure the equality of the application of the law because of the lack of standardized sentencing standards in the unitary system. As far as the reality of our country is concerned, the effect of adopting a single principal crime system is more harmful than good, and the distinguishing system between the principal offender and the accomplice still deserves to be advocated.
【作者单位】： 中国人民大学法学院;
【基金】：中国人民大学科学研究基金(14XNH009) 南开大学资助项目(14BFX064)
【分类号】：D917
，
本文编号：2431619
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