共犯异罪的立法研究--谈刑法中的独立从犯与独立教唆犯

共犯同罪,为传统共犯理论之基石.然在我国刑法当中,已出现了割断共犯间的联系,根据各共同犯罪人的实行、帮助、教唆行为分别定罪处罚的立法例.这一突破,有实践的需要,亦有立法的浮躁性带来的困惑.其中,独立教唆犯的规定有其合理之处,有的教唆行为应当也可以独立成罪,而独立从犯的设计则是不合理、不科学的,从犯与主犯在任何情况下都具有共犯关系,不应分离.

A Legislative Study of Different Charges against Accomplices -On independent abettor and independent accessory in law

Giving the same charge against accomplices is the theoretical base for traditional practice to deal with such a case. Now in our criminal law there have arisen legislative cases in which the relation of accomplices has been cut apart and each member has been convicted separately according to his/her own acts of practice, accessory or instigation. This breakthrough results from the need in practice, yet it involves certain puzzlement brought about by flippancy in legislation. Though the regulations concerning independent abettor is reasonable to some extent and some of the instigation behaviors can constitute a crime independently, the regulations of independent accessory is unreasonable and unscientific. Under all circumstances there is accomplice relation between principal and accessory, so they should not be separated.