摘要
间接正犯与教唆犯如何界分在我国争论不休,随着否定间接正犯的“异枝”现象的出现,界分问题的概念基础似乎被掏空,但此观点立论存疑,仍应肯定间接正犯概念。在此视域下,正犯与共犯的区分又是摆在眼前的根基性问题,随着正犯理论的客观实质化,实质客观说更显优势,且在此领域内的犯罪事实支配理论因更能适应我国刑法规定脱颖而出。其项下的意思支配说则成为界分间接正犯与教唆犯的有效标准,但意思支配说也并非完美,仍需完善。
The distinctions of indirect principal and the instigator are still inconclusive. With the emergence of the phenomenon of "independent" indirect criminals,the conceptual basis of the distinctive problem seems to be hollowed out. However,this view is doubtful and the concept of indirect criminality should still be affirmed. In this view,the distinction between the offense and the accomplice is the fundamental problem we will solve. With the theory of the offense become more objective,the objective theory is more advantageous. And the theory of criminal facts in this field is capable,and can adapted to the provisions of our criminal law. The meaning of dominance under the theory is an effective standard for distinct the indirect criminals and instigators. But the meaning of domination is not perfect and still should be improved.
作者
李一凡
LI Yifan(Kenneth Wang School of Law,Suzhou University,Suzhou,Jiangsu 215006)
出处
《绵阳师范学院学报》
2019年第7期20-25,共6页
Journal of Mianyang Teachers＇ College
关键词
间接正犯
教唆犯
界分
意思支配说
indirect criminal
instigator
distinction
Meaning of Domination
