间接正犯的实行行为研究

间接正犯理论是一个备受争议且实践价值很大的理论范畴,即使是在刑法学较发达的大陆法系也存在着颇多的分歧。我国刑法理论与大陆法系刑法理论比较接近,因此,立足于间接正犯仅仅是实行行为的一种特殊类型这一认识,可以参考大陆法系刑法学中关于实行行为的学说。间接正犯的实行行为应当采取“被利用者”说,并以被利用者所实施的“定型行为”为依托,来判断达到对法益的紧迫危险这一着手的时点。

On the Perpetrating Act by the Indirect Criminal

The indirect criminal is a controversial theoretic construct even in countries practicing the continental system with developed criminal law system. But it has to be said that this theoretic construct has a great value for further research. Because Chinese criminal law theory is similar to the continental system, it can be recognized that the indirect criminal is a special type of the perpetrating act with reference to the same kind of argument in the criminal law system in the continental system. The author argues that the theory of "semi-innocent agent" should be exploited to explain the perpetrating act by the indirect criminal, and the judgment of the critical point of clear and present danger to the legal interest should be supported by the set conduct implemented by the semi-innocent agent.