功能單一正犯體系的理論脈絡及其檢討

功能的單一正犯體系為了滿足法治國原則而主張在構成要件層面區分不同的共同犯罪人類型，認為各種類型的共同犯罪人具有價值等同性，反對從屬性原理，並主張以統一的法定刑處罰不同的共同犯罪人。功能單一正犯體系的提出，消解了二元共犯體系對單一正犯理論的諸多批評，導致犯罪參與體系在諸多方面呈現融合態勢。但是，共犯形式的單一性才是單一正犯概念的建構初衷與核心基底，也是正犯不法的獨立性與法定刑統一性的基礎；以統一的法定刑處罰全部共同犯罪人並非單一正犯體系的專有屬性，而可以相容於二元共犯體系；功能的單一正犯體系實際上在諸多方面接納了從屬性原理之結論，貫徹法治國原則的初衷決定了功能的單一正犯體系難以從根本上拒絕從屬性原理。與其採用具有諸多內生矛盾的功能單一正犯體系，不如在區分共同犯罪不法論與共同犯罪處罰論的基礎上建構中國的二元共犯體系。

In order to satisfy the principle of the rule of law, the so-called functional unitary complicity system distinguishes the joint criminals into different types from the aspect of the Tat best and. However, the functional unitary complicity system insists that all types of joint criminals have an equal value. It also opposes the principle of accessoriness. According to it, all joint criminals should be punished within the unified legal range of penalty. Therefore, many criticisms to the unitary complicity system have been eliminated, and the different complicity systems have integrated in many aspects. However, punishing all joint criminals within the unified legal range of penalty is never the exclusive character of the functional unitary complicity system; it can also be compatible with the differentiated complicity system. Actually, the functional unitary complicity system has accepted the conclusion of the principle of accessoriness in many aspects. Besides, the functional unitary complicity system wishes to implement the rule of law, so it cannot fundamentally reject the principle of accessoriness. The unity of the form of perpetrators is the original intention and core basis of the unitary complicity concept, and it is also the reason for the other two conclusions. Instead of accepting the functional unitary system with many endogenous conflicts, it is better to create a differentiated complicity system of China based on separating the illegality and penalty of the joint crimes.