教唆犯研究
發(fā)布時間：2019-06-27 11:54
【摘要】：教唆犯是區(qū)分制共犯體系下的法律概念。以德國、日本等國為代表的區(qū)分制共犯體系,以限制的正犯概念為其基底,將犯罪參與人在構(gòu)成要件層面區(qū)分為正犯和共犯,教唆犯是共犯的一種。在德日刑法理論上,對共犯論的研究一般以教唆犯為例展開論述,進而形成了包括教唆犯的處罰根據(jù)、教唆犯的屬性、教唆犯的構(gòu)成等內(nèi)容在內(nèi)的教唆犯理論體系,但是,在上述體系相關(guān)問題的具體內(nèi)容上卻存在爭議,幾乎對每一個細小的問題都有不同觀點的對立。我國的刑法理論雖然脫胎于前蘇聯(lián)刑法學,但近20年來受德日刑法理論的影響較深,對教唆犯問題,理論上近來的研究路徑基本上是以德日刑法理論為模板進行研究,但在相關(guān)問題的廣度和深度上,與德日刑法理論還有一定差距,同時,對一些具體的問題也沒有取得共識。在英美法系和單一正犯體系的國家立法和刑法理論中,嚴格地說不存在教唆犯這一法律概念。對以教唆方式實施犯罪的行為人,英美法系根據(jù)具體情況,分別按照未完成罪之一的教唆罪和共犯中的從犯來處理,其理論和判例對一些具體問題的處理,可以為我國刑法中的教唆犯問題提供借鑒。在單一正犯體系下,所有與犯罪結(jié)果的發(fā)生有因果關(guān)系的人,都是正犯,在犯罪的成立、刑罰的裁量等問題上,對包括傳統(tǒng)意義上的教唆犯在內(nèi)的犯罪參與者,都是按照單獨犯的方法進行考察,在這種思考方式下,對以教唆方式參與犯罪的人,不可能形成類似于區(qū)分制共犯體系下的精細而龐雜的理論體系,但是這種將共同犯罪人按照單獨犯考察的思維方式,也不失簡潔、明快的理論優(yōu)點,這種思考方法,對于我國的教唆犯問題,應該能夠起到對照、反思和借鑒的作用。正如有學者所指出的那樣,我國刑法的共犯參與體系,應當理解為單一正犯體系,因此,按照單一正犯體系的思考方法來考察我國刑法理論中的教唆犯問題,也未必不是有益的探討。鑒于上述原因,筆者在本文中主要借鑒德日刑法理論中的相關(guān)理論,對我國刑法中教唆犯問題進行探討,同時在一些具體問題上考察英美法系中教唆罪或者從犯的相關(guān)立法和理論,以期對我國刑法中的教唆犯問題有所借鑒；另外,筆者在對各個問題的論述中,也嘗試通過單一正犯體系的理論路徑對教唆犯的相關(guān)問題予以解釋和說明,以期為我國刑法中的教唆犯問題的解決提供另一種理論選擇。除導論外,本文分五章。第一章,教唆犯的性質(zhì)。按區(qū)分制共犯體系的語境,教唆犯的性質(zhì)問題就是獨立性和從屬性問題,即教唆犯的構(gòu)成是否以實行犯的實行行為為前提。本章的主要內(nèi)容有：1、對英美法系中“教唆犯”的相關(guān)規(guī)定和單一正犯體系的基本特點做了簡要介紹,對上述兩個法系(體系)中“教唆犯”的性質(zhì)問題做了探討,重點以單一正犯體系的視角,對我國刑法中教唆犯的屬性問題展開論述。2、梳理了德、日刑法理論中教唆犯從屬性和獨立性的相關(guān)內(nèi)容,重點就要素從屬性的不同觀點做了評析。3、對我國刑法理論上教唆犯性質(zhì)的不同觀點進行了梳理,并重點就近來逐漸有力的從屬性說做了分析,最后結(jié)合我國刑法和德、日刑法在立法上的不同,對我國刑法教唆犯的性質(zhì)問題提出自己的觀點。第二章,教唆犯的構(gòu)成。1、梳理了理論上對教唆犯構(gòu)成要件的不同觀點,結(jié)合我國刑法規(guī)定,得出我國刑法的教唆犯構(gòu)成要件應持“二要件說”的立場。2、討論了教唆行為的基本內(nèi)容,重點就教唆強度的上下限、教唆對象是否特定、對已有犯意但犯意不堅決者能否實施教唆以及不作為教唆問題進行論述。3、討論了教唆故意的基本內(nèi)容,梳理了英美法系中圍繞“教唆犯”主觀心態(tài)的理論爭議,討論了德日刑法理論中“雙重故意說”和“單一故意說”的爭議,并重點就片面教唆、未遂教唆和陷阱教唆等問題進行了分析。4、討論了被教唆人實行行為的基本內(nèi)容,在實行行為的客觀方面,重點梳理了日本刑法理論上對預備犯的教唆問題的爭議和教唆犯因果關(guān)系問題上的爭議；在實行行為的主觀方面,重點就近來日益有力的否定共犯對正犯故意從屬性的觀點進行了分析和反駁。第三章,教唆犯的停止形態(tài)。1、梳理了德日刑法理論和我國刑法學上對教唆行為性質(zhì)的爭議,借鑒單一正犯體系的思考方式,將教唆行為定位為正犯行為,同時重點對德日即我國刑法理論上教唆犯著手的問題進行了梳理討論。2、討論了德國刑法第30條教唆未遂的主客觀要件,梳理了我國刑法理論上對《刑法》第29條第2款的不同觀點,對該款規(guī)定所涉及的范圍和教唆人的犯罪停止形態(tài)問題做了重點分析。3、梳理了德日刑法理論和英美法系中“教唆犯”中止的規(guī)定和理論,分析了我國刑法中教唆犯中止的構(gòu)成；結(jié)合日本刑法理論中教唆犯脫離的理論研究,重點就我國刑法中教唆犯脫離與教唆犯中止的關(guān)系、教唆犯脫離的成立條件以及脫離的法律后果做了分析研究。第四章,教唆犯的刑事責任。1、對英美法系、德日和我國刑法理論中教唆犯的處罰根據(jù)問題進行了梳理,重點就因果共犯論中的不同觀點進行了評析,并結(jié)合我國刑事立法對我國教唆犯的處罰根據(jù)問題進行了探討。2、梳理了各國立法和理論上對教唆犯的處罰規(guī)定和處罰原則,重點對我國刑法中教唆犯的處罰原則及其在共同犯罪中所起作用的判斷方法進行了探討。第五章,教唆犯的其他問題。1、在教唆犯與身份犯的問題中,圍繞無身份者教唆有身份者實現(xiàn)犯罪、有身份者教唆無身份者實現(xiàn)身份犯和有身份者教唆無身份者實施不純正身份犯三個問題展開討論,梳理、評析了理論上存在的不同觀點,并對上述問題的處理提出自己的觀點。2、在教唆犯的錯誤問題中,梳理了德日刑法理論和我國刑法學中對具體的事實錯誤、抽象的事實錯誤和教唆犯與間接正犯的錯誤等問題的爭議,并提出自己的觀點。
[Abstract]:The abettor is the legal concept under the system of distinguishing the accomplice. In Germany, Japan and other countries, on the basis of the division of the system of the accomplice, the concept of the crime of the crime is the base of the crime, and the participant in the crime is divided into the positive and the accomplice at the constituent element level, and the abettor is one of the accomplices. In the theory of German criminal law, the study of the theory of the accomplice generally takes the abettor as an example, and then forms the theoretical system of the abettor, including the punishment of the abettor, the property of the abettor, the composition of the abettor, etc., but, There is a dispute over the specific content of the above-mentioned system, and it is almost the opposite of different views on every fine problem. Although the theory of criminal law of our country has been removed from the former Soviet criminal law, the influence of the theory of the German criminal law in the past 20 years has been deeper and the problem of the abettor is, in theory, the recent research path is based on the theory of German criminal law as a template, but in the breadth and depth of the related problems, There is still a gap between the theory of German criminal law and the theory of German criminal law. At the same time, there is no consensus on some specific problems. In the theory of the national legislation and criminal law of the Anglo-American law system and the single-system, it is strictly stated that there is no legal concept of abetting. On the basis of the specific situation, the Anglo-American law system, according to the specific circumstances, has dealt with the abetting and the accomplice of one of the uncompleted crimes, and the theory and the case of the crime are the treatment of some specific problems, which can provide the reference for the abettor in the criminal law of our country. in that case of a single positive crime, all those who have a causal relationship with the result of the crime are a positive person, a crime participant, including an abettor in the traditional sense, is investigated on the basis of the establishment of the crime and the discretion of the penalty, etc., and all the persons, including the abettors in the traditional sense, are investigated in accordance with the method of the individual crime, In this way, it is not possible to form a fine and complex theoretical system that is similar to that of the system of distinguishing the accomplice, but the way of thinking in which the co-offender is to be investigated in a separate way is also a simple and quick theoretical advantage. This kind of thinking method, for our country's instigator problem, should be able to act as the control, the reflection and the reference. As some scholars have pointed out, the participation system of the accomplice in the criminal law of our country should be understood as a single system of positive crime. Therefore, it is not necessary to explore the abettor in the theory of criminal law in our country according to the thinking method of the single system. In view of the above-mentioned reasons, the author mainly uses the relevant theories in the theory of German criminal law, and probes into the problem of the abettor in the criminal law of our country. At the same time, the author investigates the instigation or the related legislation and the theory of the offense in the common law system in some specific problems. In this paper, the author also tries to explain and explain the related problems of the abettors through the theoretical path of a single system of positive crime in the discussion of various problems. The aim of this paper is to provide another theoretical choice for the solution of the problem of abettors in the criminal law of our country. In addition to the introduction, this article is divided into five chapters. The first chapter, the nature of the abettor. According to the context of the system of distinguishing the accomplice, the problem of the nature of the abettor is independence and from the question of the property, that is, whether the composition of the abettor is the premise of the implementation of the crime. The main contents of this chapter are as follows:1. The basic characteristics of the "abettor" in the Anglo-American legal system and the basic characteristics of the single system are briefly introduced, and the properties of the "abettor" in the two systems are discussed. The article discusses the property of the abettor in the criminal law of our country. In the end, the author puts forward his own opinions on the nature of the abettor of the criminal law in our country. In the second chapter, the composition of the abettor is the first, the different views on the constituent elements of the abettor in the theory, combined with the provisions of the criminal law of our country, it is concluded that the constituent elements of the abettors of our criminal law should take the "the two essential elements" 's position.2. The basic contents of the abetting behavior are discussed, and the upper and lower limits of the abetting strength are emphasized. The article discusses whether the abetting object is specific, whether the abetting and the abetting is not the abetting problem, the author discusses the basic content of the abetting intention, and combs the theoretical dispute about the subjective attitude of the "abettor" in the Anglo-American law system. In this paper, the "double-purpose" and "single purpose" in the theory of German criminal law are discussed, and the problems such as one-sided abetting, attempted abetting and trap abetting are analyzed.4. The basic contents of the act of abetting people are discussed, and the objective aspect of the act is discussed. This paper focuses on the controversy on the problem of the abetting and the relationship between the abettor and the abettor in the theory of Japanese criminal law. In the subjective aspect of the practice, the author analyzes and refutes from the point of view of the increasingly powerful negative accomplice. The third chapter, the stop form of the abettor.1. It's combing the theory of German criminal law and the controversy on the nature of the abetting behavior in our country's criminal law. At the same time, the author makes a general discussion on the problem of instigation in the theory of criminal law of Germany, and discusses the main objective elements of the attempt to abet in the article 30 of the German criminal law, and then combs out the different views of the criminal law of our country on the article 29, paragraph 2, of the Criminal Law. On the basis of the analysis of the provisions and the theory of the suspension of the "abettor" in German criminal law theory and common law system, the paper analyzes the constitution of abettor in our country's criminal law. In the light of the theoretical study of the separation of abettors from the theory of criminal law in Japan, the author makes an analysis and study on the relationship between the abetting of the abettor and the abetting of the abettor, the conditions of the establishment of the abettor and the legal consequence. Chapter four, the criminal responsibility of the abettors.1. The punishment of the abettors in the Anglo-American law system, the German day and the criminal law theory of our country is analyzed according to the problem, and the different views of the cause and effect accomplice theory are analyzed. The article discusses the punishment of the abettors in our country by combining the criminal legislation of our country. The article focuses on the punishment principle of the abettor in the criminal law of our country and the method of judging the role of the abettor in the joint crime. Chapter five, the other problems of the abettor.1. In the problem of the abettor and the identity, the identity-offender is abetted to realize the crime, the identity-offender is abetted to realize the identity-offender and the identity-offender abets the non-identity person to implement the three problems of the non-pure identity, In this paper, the author makes an analysis of the different viewpoints in the theory and puts forward his own opinions on the above-mentioned problems. In the wrong question of the abettor, we have combed the theory of German criminal law and the specific facts in our criminal law. The abstract facts of the facts and the errors of the abettors and the indirect ones, and so on, and put forward their own views.
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2015
【分類號】：D924.1
，
本文編號：2506766
[Abstract]:The abettor is the legal concept under the system of distinguishing the accomplice. In Germany, Japan and other countries, on the basis of the division of the system of the accomplice, the concept of the crime of the crime is the base of the crime, and the participant in the crime is divided into the positive and the accomplice at the constituent element level, and the abettor is one of the accomplices. In the theory of German criminal law, the study of the theory of the accomplice generally takes the abettor as an example, and then forms the theoretical system of the abettor, including the punishment of the abettor, the property of the abettor, the composition of the abettor, etc., but, There is a dispute over the specific content of the above-mentioned system, and it is almost the opposite of different views on every fine problem. Although the theory of criminal law of our country has been removed from the former Soviet criminal law, the influence of the theory of the German criminal law in the past 20 years has been deeper and the problem of the abettor is, in theory, the recent research path is based on the theory of German criminal law as a template, but in the breadth and depth of the related problems, There is still a gap between the theory of German criminal law and the theory of German criminal law. At the same time, there is no consensus on some specific problems. In the theory of the national legislation and criminal law of the Anglo-American law system and the single-system, it is strictly stated that there is no legal concept of abetting. On the basis of the specific situation, the Anglo-American law system, according to the specific circumstances, has dealt with the abetting and the accomplice of one of the uncompleted crimes, and the theory and the case of the crime are the treatment of some specific problems, which can provide the reference for the abettor in the criminal law of our country. in that case of a single positive crime, all those who have a causal relationship with the result of the crime are a positive person, a crime participant, including an abettor in the traditional sense, is investigated on the basis of the establishment of the crime and the discretion of the penalty, etc., and all the persons, including the abettors in the traditional sense, are investigated in accordance with the method of the individual crime, In this way, it is not possible to form a fine and complex theoretical system that is similar to that of the system of distinguishing the accomplice, but the way of thinking in which the co-offender is to be investigated in a separate way is also a simple and quick theoretical advantage. This kind of thinking method, for our country's instigator problem, should be able to act as the control, the reflection and the reference. As some scholars have pointed out, the participation system of the accomplice in the criminal law of our country should be understood as a single system of positive crime. Therefore, it is not necessary to explore the abettor in the theory of criminal law in our country according to the thinking method of the single system. In view of the above-mentioned reasons, the author mainly uses the relevant theories in the theory of German criminal law, and probes into the problem of the abettor in the criminal law of our country. At the same time, the author investigates the instigation or the related legislation and the theory of the offense in the common law system in some specific problems. In this paper, the author also tries to explain and explain the related problems of the abettors through the theoretical path of a single system of positive crime in the discussion of various problems. The aim of this paper is to provide another theoretical choice for the solution of the problem of abettors in the criminal law of our country. In addition to the introduction, this article is divided into five chapters. The first chapter, the nature of the abettor. According to the context of the system of distinguishing the accomplice, the problem of the nature of the abettor is independence and from the question of the property, that is, whether the composition of the abettor is the premise of the implementation of the crime. The main contents of this chapter are as follows:1. The basic characteristics of the "abettor" in the Anglo-American legal system and the basic characteristics of the single system are briefly introduced, and the properties of the "abettor" in the two systems are discussed. The article discusses the property of the abettor in the criminal law of our country. In the end, the author puts forward his own opinions on the nature of the abettor of the criminal law in our country. In the second chapter, the composition of the abettor is the first, the different views on the constituent elements of the abettor in the theory, combined with the provisions of the criminal law of our country, it is concluded that the constituent elements of the abettors of our criminal law should take the "the two essential elements" 's position.2. The basic contents of the abetting behavior are discussed, and the upper and lower limits of the abetting strength are emphasized. The article discusses whether the abetting object is specific, whether the abetting and the abetting is not the abetting problem, the author discusses the basic content of the abetting intention, and combs the theoretical dispute about the subjective attitude of the "abettor" in the Anglo-American law system. In this paper, the "double-purpose" and "single purpose" in the theory of German criminal law are discussed, and the problems such as one-sided abetting, attempted abetting and trap abetting are analyzed.4. The basic contents of the act of abetting people are discussed, and the objective aspect of the act is discussed. This paper focuses on the controversy on the problem of the abetting and the relationship between the abettor and the abettor in the theory of Japanese criminal law. In the subjective aspect of the practice, the author analyzes and refutes from the point of view of the increasingly powerful negative accomplice. The third chapter, the stop form of the abettor.1. It's combing the theory of German criminal law and the controversy on the nature of the abetting behavior in our country's criminal law. At the same time, the author makes a general discussion on the problem of instigation in the theory of criminal law of Germany, and discusses the main objective elements of the attempt to abet in the article 30 of the German criminal law, and then combs out the different views of the criminal law of our country on the article 29, paragraph 2, of the Criminal Law. On the basis of the analysis of the provisions and the theory of the suspension of the "abettor" in German criminal law theory and common law system, the paper analyzes the constitution of abettor in our country's criminal law. In the light of the theoretical study of the separation of abettors from the theory of criminal law in Japan, the author makes an analysis and study on the relationship between the abetting of the abettor and the abetting of the abettor, the conditions of the establishment of the abettor and the legal consequence. Chapter four, the criminal responsibility of the abettors.1. The punishment of the abettors in the Anglo-American law system, the German day and the criminal law theory of our country is analyzed according to the problem, and the different views of the cause and effect accomplice theory are analyzed. The article discusses the punishment of the abettors in our country by combining the criminal legislation of our country. The article focuses on the punishment principle of the abettor in the criminal law of our country and the method of judging the role of the abettor in the joint crime. Chapter five, the other problems of the abettor.1. In the problem of the abettor and the identity, the identity-offender is abetted to realize the crime, the identity-offender is abetted to realize the identity-offender and the identity-offender abets the non-identity person to implement the three problems of the non-pure identity, In this paper, the author makes an analysis of the different viewpoints in the theory and puts forward his own opinions on the above-mentioned problems. In the wrong question of the abettor, we have combed the theory of German criminal law and the specific facts in our criminal law. The abstract facts of the facts and the errors of the abettors and the indirect ones, and so on, and put forward their own views.
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2015
【分類號】：D924.1
，
本文編號：2506766
本文鏈接：http://lk138.cn/falvlunwen/xingfalunwen/2506766.html
