胁从犯体系定位之困惑与出路——一个中国问题的思索

胁从犯的立法虽受到"胁从不问"政策的强烈影响,但对其从宽处罚的法理根据可以运用期待可能性理论进行说明;主流通说将胁从犯的认定着眼于"被胁迫参加犯罪"与"所起的作用较小(小于从犯)",并据此将其视为独立的共犯人种类的观点存在逻辑障碍,需要进行深入检讨;在解释论上否定胁从犯是独立的共犯人种类的理论观点,虽避免了逻辑冲突,但结合立法规定仍会导致罪刑失衡的难题;在既有解释路径无法妥善解决胁从犯的体系定位与合理处罚的前提下,必须直面现行立法的缺陷,提出合理的立法建议。

Predicaments and Outlet of Orientation of Accomplice under Duress——Reflection on Chinese Legislation

Chinese legislation concerning accomplice under duress is deeply affected by the policy"not to punish crime under duress",however,the theory basis of accomplice under duress should be explained by expected possibility;popular view regards accomplice under duress is an independent kind of complicity that commits crime under duress and plays little role in it,this view has some logic confuse and need to be reflected;the theory some scholars hold that accomplice under duress is not an independent kind of complicity could avoid logic confuse but tends to result in the imbalance of crime and penalty;since the exiting theory can’t explain the orientation of accomplice under duress as well as its reasonable punishment,the defects of legislation should be admitted and put forward some reasonable suggestion.