“正犯後正犯”與犯罪參與理論研究

The Study on the Concept of 'the Perpetrator behind the Perpetrator' and the Theory of Crime Participation

在實質正犯理論視域下，“正犯後正犯”逐漸得到普遍認可。作為共動形態的“正犯後正犯”，明確肯定了幕後參與者的犯罪支配及優越的犯罪支配，再次印證了共同犯罪僅系實現不法的方法類型，揭示了共動現象中各參與犯的不法評價應個別且獨立進行。“正犯後正犯”在間接正犯的延長線上極度拓展了正犯的外延，根本上重塑著正犯的形象與內涵，也實質性地影響著犯罪參與理論的重構。“正犯後正犯”雖衍生於正犯與共犯區分制立法，卻與限制的正犯概念及二元犯罪參與體系完全相悖，實質上走向了單一正犯概念與單一正犯體系。

Pursuant to the theory of principal offenders, the concept of 'the perpetrator behind the perpetrator' is approved gradually. As a joint form of a crime, the concept of 'the perpetrator behind the perpetrator' confirms that the manipulator behind the crime has also managed the crime, and even got the whip hand in some cases. Moreover, the concept also confirms that the joint form of a crime is just one type of ways to achieve the illegal purpose, and therefore the illegality of each participant should be evaluated independently in these cases. Nowadays, the concept of 'the perpetrator behind the perpetrator' is expanding the scope of principal offenders extremely from the point of indirect principal offenders, and reshaping the concept of principal offenders thoroughly, and affecting the reconstruction of the theory of crime participation. The concept of 'the perpetrator behind the perpetrator' has deviated completely from the concept of limitary perpetrator and the dividing system of crime participation, although it had derived from the latter. As a matter of fact, the concept of 'the perpetrator behind the perpetrator' is coming into an independent concept and tending eventually to unitary system of crime participation.