重新審視清律中的不行之造意者──對中法史共同犯罪理論的反思

Reconsidering the“Person Who Formulates the Plan but Does Not Commit the Criminal Act”in the Qing Code: Reflecting on the Theory of Complicity in Chinese Legal History

清律「共犯罪分首從」律將共犯罪之人按造意和隨從進行劃分，有其獨特的法觀念存在。近現代刑法學解釋教唆犯和正犯的通說，主要是以個人責任為基礎，中國法律史既有研究受此影響也多依照此學說，試圖從個人責任主義的角度闡釋古代法律上的共同犯罪現象，並產生了兩大較有代表性的學說，即「教唆犯又稱造意犯」，以及「造意者以實行為原則」。但是，該兩種學說不能完全解釋清律共犯罪中的不行之造意者。而且，它們自身也存在難以自圓其說之處。學界應該轉變思路，從團體責任而不是個人責任的角度，重新省察古代法律上的共同犯罪現象。對於清律上的不行之造意者的性質及其與幕後原謀之人的關係，也應從團體責任的角度進行考慮。從團體責任的觀念來看，不行之造意者是作為共犯罪主體的一心同體、同心同德的犯罪團體之一員，是該團體犯意的最初提出者。而且，並非所有幕後原謀之人均是不行之造意者，他們或因與夥犯不是一心同體、同心同德，或因法觀念的限制而被排除在共犯罪主體之外。

In the Qing Code, the article distinguishing principals and accessories in joint crimes (gongfanzui fen shoucong 共犯罪分首從) divides the crimainals into the person who formulates the plan (zaoyi 造意) and the accomplices (suicong 隨從). This contains a unique legal philosophy. In modern criminal law theory, instigators and principal offenders are determined based on personal responsibility. The existing research on Chinese legal history thus tries to explain complicity in premodern law according to this thesis, that is, from the perspective of personal responsibility. This produces two representative theses, namely “the instigator is the person who is called zaoyi” and “in principle, the person who is called zaoyi should commit the criminal act.” However, these principles do not fully explain the phenomenon of the person who formulates the plan but does not commit the criminal act in Qing law. Moreover, they are not unproblematic. The scholarly world should change its approach and rethink the phenomenon of complicity in premodern law from the perspective of group rather than personal responsibility. In Qing law, the nature of the person who formulates the plan but does not act and his (or her) relationship with the mastermind who hides behind the scenes should be considered in terms of group responsibility. From this vantage point, the person who formulates the plan but does not act is a member of a criminal group with a single mind and a single intention. Moreover, he (or she) first proposed the criminal intention. Not all the masterminds who hide behind the scene are the people who formulate the plan but do not act. Some of them are not members of a criminal group, either because they are not of a single mind and intention with the other people in the group, or because legal concepts place them outside the criminal group.