共犯的實行從屬性論在我國的困境與出路

The Plights and Outlets of the Theory of Subservience of Accomplice in China

共犯的實行從屬性說在中國尚未真正確立：實務仍在適用共犯獨立性說；實行從屬性說在我國學界亦受到諸多批評；很多學者誤以為處罰教唆未遂便與實行從屬性說衝突，這導致該說在我國進一步陷入窘境。實行從屬性說符合刑法客觀主義立場，我國學者對該說的反對理由並不成立，故我國亦應採納實行從屬性說，以正確引導司法。值得澄清的是，處罰教唆未遂與共犯的實行從屬性說並不矛盾。對於性質嚴重的教唆未遂，仍可認定為犯罪預備，並直接援引處罰預備犯的特別法條第29條第2款；至於該款規定在刑罰配置上相對嚴苛，可通過靈活運用總則第37條進行補救。

The theory of subservience of accomplice hasn’t established in China. Firstly, a case of “ Criminal Justice Reference” indicates that Chinese judicial practice is still applying the theory of independence of accomplice. Secondly, the theory of subservience of accomplice is also criticized by Chinese scholars from different angles. Finally, most Chinese scholars make a mistake that the punishment of attempted instigation conflicts with the Theory of Subservience of accomplice, which makes this theory further misunderstood. The theory of subservience of accomplice conforms to criminal objectivism, therefore has been generally accepted by different legal systems. Moreover, the criticism of Chinese scholars on this theory is unreasonable. So our country should also adopt this theory. At the same time, serious attempted instigation should be punished as preparatory crime due to the 2nd paragraph of article 29, the inappropriate penalty of which can be modified by article 37 of our criminal law.