中國語境下罪量獨立的新限制從屬性說之提倡

A Study on New Restrictive Subordination Theory of Independent Quantitative Elements of Crime in a Chinese Context

根據我國“立法定性+定量”的犯罪化模式，構成要件包括行為類型和罪量標準，分別對應定性違法性和定量違法性；而在共同犯罪中，正犯與共犯的連接基礎僅限於不法類型而不包括不法程度，共犯的罪量具有獨立性。因而，共犯從屬性僅指行為類型和定性違法性的從屬，我國語境下的限制從屬性說也應修正為：只有當正犯符合構成要件的行為類型並具有定性違法性時，共犯才能成立，之後再依照其自身罪量程度及罪量標準進行定量判斷，此即“罪量獨立的新限制從屬性說”。據此，既肯定無正犯的共犯，又肯定無共犯的正犯，但二者的成立範圍有所不同。基於新限制從屬性說，可以澄清學界對所謂共犯正犯化立法的誤讀，將共犯形態立法還原為共犯形態本身為正犯行為、共犯型預備行為實行化及共犯行為的罪量差異化三種類型，進而解決立法和司法層面的疑難問題。

Based on the criminalization model of "legislative qualitative + legislative quantitative" in China, the constitutive elements include behavior type and quantitative standard of crime, which correspond to qualitative illegality and quantitative illegality respectively. According to the theory of restrictive subordination, accomplice can be established only if perpetrator conforms to the constitutive elements and has illegality. Therefore, the theory of restrictive subordination includes the content of quantitative elements of crime, which has the subordination in China. However, such theory is causing many problems. In terms of criminal legislation, there is a paradox that perpetrator is not guilty, but the accomplice is charged in Chinese criminal law. Furthermore, the conducts of accomplice are committed separately with conviction standards independently. In terms of judicial application, the paradox is still existing when perpetrator does not reach the crime standard, but the accomplice may reach the crime standard at the same time because of the accumulation of quantities of illegalities or the lowering of the conviction threshold, which resulting in punishment loopholes according to the standard of restrictive subordination theory. Many solutions have been proposed by academic community, but none of them can completely solve the above problems. In this regard, we should reconsider the distinction between perpetrator and accomplice, make it clear that the connection about these two types of criminals is limited to the type of illegality but excluding the degree of illegality. It means that the quantitative elements of crime of accomplice is independent. Therefore, the theory of accomplice subordination only refers to the subordination of behavior type and qualitative illegality, and the restrictive subordination theory in China should also be revised that only when the perpetrator meets the behavior type of the constitutive elements and his or her behavior has qualitative illegality, the crime of accomplice can be admitted. Futhermore, the judgment about quantitative can be made according to its own degree of crime and the quantitative standard of crime, which is the "new restrictive subordination theory of independent quantitative elements of crime". According to this, the situation of accomplice without perpetrator and the situation of perpetrator without accomplice can be evaluated accurately, and make it clear that the difference about the scope of establishment of crime. Based on the new restrictive subordination theory, the so-called legislation of treating accomplice as perpetrator is a misunderstanding from academic community, and it is more appropriate to call it the legislation of complicity form. This part of legislation can be reduced to three types: the perpetrator's act itself, transforming the preparatory of accomplice type act to the perpetrating act and the difference of the quantitative elements of crime of accomplice. In the judicial interpretation, there is no provision that treating accomplice as perpetrator, they are only for the perpetrator or accomplice of the crime standard, including the concretization of the perpetrator's crime standard, and the difference between the accomplice's crime standard and the perpetrator's crime standard. In judicial practice, there are some provisions that are not regulating joint crimes, but lead to the difference in the threshold of crime evaluation of perpetrator and accomplice in a case, and the situation that the degree of crime of perpetrator and accomplice is different due to the facts of the case, which can be properly dealt with according to the new theory of restrictive subordination.