共犯本質論重述行為共同說的本土化證成

我國通說關於共同犯罪成立條件的見解造成了實務中的罪刑脫鉤現象。對共犯本質的不同理解會影響對共犯成立範圍的認定。完全犯罪共同說、強硬的部分犯罪共同說以及緩和的部分犯罪共同說均存在問題。以因果性為核心、以共同事實為基礎、以待評價的共犯本身為視角的行為共同說，具有相對於犯罪共同說的理論優越性，能夠整合限制從屬性說，在共犯處罰根據上更為妥當，也更適應我國刑事立法。在行為共同說的指導下，對各共犯人適用不同的分則條文就成為可能，而且罪刑脫鉤的現象也得到消解。

The dominant theory in China about the constituent elements of complicity results in the phenomenon of disconnection between offense and penalty. The different understanding of the nature of complicity will bring about difference in the scope of complicity. All of the theory of totally joint perpetration, the strict theory of partly joint perpetration and the soft theory of partly joint perpetration have deficiencies. Because of the theoretical advantage to the theory of joint perpetration, the appropriateness with respect to the theory of the justification for the punishment of accomplices, the integrity with the theory of restrictive subordination and the compatibility with the criminal legislation of China, the theory of joint acts, which focuses on the causality, based on the common facts and assess from the accomplices themselves, is the appropriate opinion of the nature of complicity. In light of the theory of joint acts, it becomes possible to apply different provisions in the specific part of the Penal Code to each accomplice. Moreover, the phenomenon of disconnection between offense and penalty can also be solved.