幫助犯邊界研究
發(fā)布時間：2019-05-19 06:42
【摘要】：共同犯罪問題乃刑法理論研究領(lǐng)域的核心問題,也是刑事司法實踐領(lǐng)域的復(fù)雜難題。對于該問題,凡在刑法學(xué)園地中深耕之學(xué)人,無人敢于怠慢,也無人能夠回避。在共同犯罪這一大的范疇下,幫助犯的邊界問題舉足輕重,探討區(qū)分幫助犯與正犯、幫助犯與教唆犯、幫助犯與中性幫助行為之原則與標準,并在此基礎(chǔ)上形成一套完整的、周密的、邏輯自洽的幫助犯認定方法,于刑法理論與實踐皆大有裨益。本文以罪刑法定原則、法益保護原則、人權(quán)保障原則為根本指導(dǎo)原則(基本出發(fā)點),以絕對結(jié)果無價值論為犯罪論之基石或曰犯罪之本質(zhì),就幫助犯邊界之明確展開論述,進而形成界定共同犯罪-區(qū)分幫助犯與正犯-區(qū)分幫助犯與教唆犯-區(qū)分幫助犯與中立幫助行為的幫助犯系統(tǒng)性認定方法。本文導(dǎo)論部分簡析了共同犯罪、幫助犯研究陷入艱難而又窘迫境地的原因,以及作者寫作本文的意圖;第一部分就幫助犯的有關(guān)基本問題進行界定與陳述,并在合適的位置穿插了作者的個人評價與主張,這些問題包括幫助犯的概念、幫助犯的體系、幫助犯的處罰根據(jù)等;第二部分在共同犯罪內(nèi)部展開討論,對共同犯罪成立范圍、幫助犯與正犯界分問題、幫助犯與教唆犯界分問題進行了詳細闡述。共同犯罪成立范圍這一課題所要解決的問題是數(shù)個行為在何種情況下具備何種條件方可成立共同犯罪,共同犯罪的成立乃探討幫助犯與正犯、幫助犯與教唆犯界分的前提。對于幫助犯與正犯之界分,綜述了問題之淵源以及在共同犯罪理論史中圍繞該問題形成的諸多理論與見解,同時作者也陳述了自己的觀點以及論證;第三部分是對幫助犯與中立幫助行為的論述。在共同犯罪的成立范圍這一課題下解決了滿足何種條件數(shù)個行為方可構(gòu)成共同犯罪的問題,然而這種判斷是一種略顯粗放的、概括的判斷,常將形似幫助犯實則中立幫助行為的情況納入其中,這就需要就具體情形進行精細判斷,將幫助犯與中立幫助行為區(qū)分開來;第四部分乃文章之結(jié)論,明確共同犯罪認定-區(qū)分幫助犯與正犯-區(qū)分幫助犯與教唆犯-區(qū)分幫助犯與中立幫助行為這一幫助犯界分與認定的系統(tǒng)性方法。
[Abstract]:The problem of joint crime is not only the core problem in the field of criminal law theory research, but also a complex problem in the field of criminal justice practice. For this problem, no one dares to neglect, and no one can avoid it, who ploughed deeply in the criminal law garden. Under the scope of joint crime, the boundary problem of aiding crime plays an important role, and probes into the principles and standards for distinguishing aiding offender from principal offender, aiding offender and abettor, aiding crime and neutral aiding act, and forms a complete set of principles and standards on this basis. Careful, logical and self-consistent identification methods of helping criminals are of great benefit to both criminal law theory and practice. This article takes the principle of legality of crime and punishment, the principle of protection of legal interests, the principle of human rights protection as the fundamental guiding principle (basic starting point), takes the theory of absolute result without value as the cornerstone of crime theory or the essence of crime, and discusses the clear boundary of helping crime. Then the systematic identification method of defining joint crime, distinguishing accomplice from principal offender, distinguishing accomplice from abettor, distinguishing aiding crime from neutral aiding act is formed. The introduction part of this paper briefly analyzes the causes of joint crime, helping criminals to study the difficult and embarrassing situation, and the author's intention to write this article. The first part defines and states the basic problems of helper crime, and intersperses the author's personal evaluation and proposition in a suitable position, including the concept of helper crime, the system of helper crime, the basis of punishment for helping crime, and so on. The second part discusses the scope of joint crime, the distinction between aiding crime and principal crime, and the division between aiding crime and abetting crime. The problem to be solved in the scope of joint crime is under what circumstances can several acts have the conditions to establish joint crime. The establishment of joint crime is the premise to explore the distinction between aiding crime and principal crime, aiding crime and abetting crime. With regard to the distinction between helping crime and principal offender, this paper summarizes the origin of the problem and many theories and opinions formed around this problem in the history of joint crime theory. At the same time, the author also states his own views and argumentation. The third part is the discussion of help crime and neutral help behavior. Under the subject of the scope of the establishment of joint crime, the problem of what conditions can be met to constitute joint crime has been solved, but this judgment is a slightly extensive and general judgment. Often, it is necessary to judge the specific situation and distinguish the help crime from the neutral help behavior, which often includes the situation which is similar to the help crime while the neutral help behavior is included in the case of help crime, which requires careful judgment of the specific situation and the distinction between the help crime and the neutral help behavior. The fourth part is the conclusion of the article, which is a systematic method to distinguish the boundary between the accomplice and the neutral accomplice, which is the systematic method of distinguishing the accomplice from the principal offender, the distinction between the accomplice and the abettor, and the distinction between the accomplice and the neutral aiding act.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.1
，
本文編號：2480484
[Abstract]:The problem of joint crime is not only the core problem in the field of criminal law theory research, but also a complex problem in the field of criminal justice practice. For this problem, no one dares to neglect, and no one can avoid it, who ploughed deeply in the criminal law garden. Under the scope of joint crime, the boundary problem of aiding crime plays an important role, and probes into the principles and standards for distinguishing aiding offender from principal offender, aiding offender and abettor, aiding crime and neutral aiding act, and forms a complete set of principles and standards on this basis. Careful, logical and self-consistent identification methods of helping criminals are of great benefit to both criminal law theory and practice. This article takes the principle of legality of crime and punishment, the principle of protection of legal interests, the principle of human rights protection as the fundamental guiding principle (basic starting point), takes the theory of absolute result without value as the cornerstone of crime theory or the essence of crime, and discusses the clear boundary of helping crime. Then the systematic identification method of defining joint crime, distinguishing accomplice from principal offender, distinguishing accomplice from abettor, distinguishing aiding crime from neutral aiding act is formed. The introduction part of this paper briefly analyzes the causes of joint crime, helping criminals to study the difficult and embarrassing situation, and the author's intention to write this article. The first part defines and states the basic problems of helper crime, and intersperses the author's personal evaluation and proposition in a suitable position, including the concept of helper crime, the system of helper crime, the basis of punishment for helping crime, and so on. The second part discusses the scope of joint crime, the distinction between aiding crime and principal crime, and the division between aiding crime and abetting crime. The problem to be solved in the scope of joint crime is under what circumstances can several acts have the conditions to establish joint crime. The establishment of joint crime is the premise to explore the distinction between aiding crime and principal crime, aiding crime and abetting crime. With regard to the distinction between helping crime and principal offender, this paper summarizes the origin of the problem and many theories and opinions formed around this problem in the history of joint crime theory. At the same time, the author also states his own views and argumentation. The third part is the discussion of help crime and neutral help behavior. Under the subject of the scope of the establishment of joint crime, the problem of what conditions can be met to constitute joint crime has been solved, but this judgment is a slightly extensive and general judgment. Often, it is necessary to judge the specific situation and distinguish the help crime from the neutral help behavior, which often includes the situation which is similar to the help crime while the neutral help behavior is included in the case of help crime, which requires careful judgment of the specific situation and the distinction between the help crime and the neutral help behavior. The fourth part is the conclusion of the article, which is a systematic method to distinguish the boundary between the accomplice and the neutral accomplice, which is the systematic method of distinguishing the accomplice from the principal offender, the distinction between the accomplice and the abettor, and the distinction between the accomplice and the neutral aiding act.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.1
，
本文編號：2480484
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