《刑法》第27條“起次要作用的人”的教義學闡釋

Doctrinal Interpretation of ''Persons with A Secondary Role'' in Article 27 of Criminal Code

妥當確定從犯的範圍，對於適當量刑至關重要。實務上對於《刑法》第27條規定的在共同犯罪中起次要作用的從犯通常不予認可；理論上也有人認為該規定是多餘的。但上述認識值得商榷。應當以犯罪支配說確定正犯，再對共犯人進一步細分其作用大小。在共同犯罪中，對“起次要作用的人”的判斷主要是事實判斷，其判斷以涉及責任刑的事實為審查重點，由於共同犯罪是違法事實，在“共同犯罪中”意味著認定“起次要作用的人”以本次犯罪的違法事實為基礎，主觀的責任事實則輔助性地予以考慮，屬於預防刑的事實不能作為區分主從犯的依據。從類型分析的角度看，《刑法》第27條“起次要作用的人”包括起次要作用的（共同）正犯、個別共謀共同正犯、絕大多數教唆犯。

To correctly tell the prime culprit apart from the accessory and properly identify the scope of the accessory is of critical importance to appropriate sentencing. Nevertheless, accomplice of this type is usually not recognized in practice. Theoretically, some believe that the specification of Article 27 of The Criminal Law of the People's Republic of China on the person that plays a secondary role is unnecessary. The above ideas both require further discussions. To distinguish the principal offender from the accomplice, one should make a substantial judgment based on the theory of crime domination The follow-up judgment of the role of the prime culprit and accessory should be further segmented on the basis of labor distribution and classification. In the joint crime, The judgment regards the facts related to the liability punishment as the focus of review. Since the joint crime is an illegal fact, it means that to identify the person that plays a secondary role in a joint crime can be based on illegal facts of this crime. The subjective liable facts can be considered accessorily. As to facts of the preventative punishment, they cannot serve as the basis for judgment. From the perspective of type analysis, the person that plays the secondary role as defined by Article 27 of The Criminal Law of the People's Republic of China might be the (joint) criminal offender, collusive coprincipal in the minority, and abettor in the absolute majority that play a secondary role.