论我国刑法语境下过失共同犯罪成立的解释路径———以单一正犯体系为出发点

The Interpretive Approach to Establishing Negligent Joint Crime in the Context of Chinese Criminal Law—Take the Differentiating System as Starting Point

摘要:

我国刑法第 25 条规定了 “ 共同犯罪” 并将 “ 共同犯罪” 局限于故意的场合, 但这并不意味着否定了过失共同犯罪的适用。 包括刑法第 25 条第 1 款等条文中的 “ 共同犯罪” , 应在区分了正犯与共犯的区分制共犯立法体例下进行理解, 以处理故意共同犯罪的情形。 而刑法第 25 条第 1 款强调的并非是过失共同犯罪以单独犯论处, 而是各参与者在单一制共犯立法体例下, 全部按正犯处理。 故意共同犯罪和过失共同犯罪均是共同犯罪原理统摄下的共同犯罪形态, 在同一部刑法中将故意和过失的共同犯罪形态分别置于区分制和单一制下, 没有超出共同犯罪的可能立法范围, 是在罪刑法定原则下进行的合目的性解释。肯定过失共同犯罪的适用, 能够回应风险社会下频发的过失共同犯罪现象, 体现功能主义刑法观指导下刑法解释的生命力。

Abstract:

Article 25 of the Criminal Law of China stipulates _“joint crime_” and limits it to intentional occasions，but it does not mean that the application of negligent joint crime is denied. The viewpoint denying negligent joint crime starts from the actual law，which considers that under the principle of statutory punishment the phenomenon of negligent co-action cannot be directly evaluated as joint negligent crime. In the absence of provisions of the law，it should never be allowed to evade the criminal law to realize the needs to protect legal interests or the impulse to punish such action. The viewpoint affirming negligent joint crime also holds that a doctrinarian system should be established within the existing legislative framework. At the same time，it should be valued that the phenomenon of negligent co-action often occurs in reality and causes legal and social problems by the neglect in legislation. Then from the angle of criminal policy，the author tries to explain this phenomenon into the criminal law system within the scope of current legislation. Based on practical considerations，the relevant judicial interpretation and judicial judgment have implied the thinking method of affirming negligent joint crime. However due to the provisions of Article 25 in Criminal Law，it is often dealt with relatively vaguely in the expression of the article and the reasoning of the judgment. In order to realize the purpose of smoothly incorporating the negligent joint crime into the criminal law system of our country ，it is necessary to interpret the chapter of joint crime in criminal law from two kinds of legislative systems of accomplice，namely the differentiating system and the unitary system. The expression of _“joint crime_” in the first paragraph of article 25 ought to be understood under the legislative style of differentiating system，which deals with the situation of intentional joint crime. The second paragraph of article 25 in criminal law does not emphasize that negligent joint crime is punished as a single offender. All participants are treated as principal criminals under the unitary system and this is also consistent with the characteristics of negligent crime. Both intentional joint crime and negligent joint crime are joint crime forms under the control of joint crime principle. It is not beyond the scope of possible legislation to place the joint criminal forms of intention and negligence under the system of distinction and unitary respectively in the same criminal law，which is a purposive interpretation under the principle of legality. The application of negligent joint crime can respond to the frequent phenomenon of negligent co-action under the risk society，especially in the case of collective research which causes serious infringement of legal interests by negligence. It can realize the conviction and sentencing of relevant participants and avoid the embarrassment of no one being responsible for the damage consequences. The affirmation of negligent joint crime is helpful to perfect the theory system of accomplice in our country，and also has a guiding effect on the relevant judgment conclusions and reasoning of the judge in judicial practice. Compared with the amendment of article 25 of criminal law，the method of admitting that the accomplice system of our country integrates the differentiating system and the unitary system while satisfying the purpose rationality，does not violate the principle of joint crime and does not go beyond the possible meaning of the relevant provisions and terms，which embodies the vitality of criminal law interpretation under the guidance of functionalism criminal law view.