幫助犯問題的單一制體系方案

The Solution of Unitary System to the Problem of Accessory

刑法總則明文規定幫助犯乃運用區分制方案處理幫助犯問題之前提。區分制方案固然能解决部分定罪處罰問題，却有不少理論缺陷。我國刑法總則不規定幫助犯，只能按照單一制方案處理幫助犯問題。區分制方案無法妥當解决的定罪處罰問題，按照單一制方案解釋我國刑法規定便迎刃而解。單一制方案不會前移未遂犯範圍和不必要地擴張刑罰。對於我國司法實務中幫助犯問題，運用單一制方案處理比運用區分制方案處理明顯更爲優越。

The way of according to the theory of “principal and accomplice dividing system” to deal with the problem of accessory is based on that the “accessory” (a type of criminal participation) has been clearly stipulated in the general rules of the criminal law. Although, to some extents, the solution of the theory of dividing system has solved some problems of conviction and punishment, meanwhile many new theoretical problems are brought by it. In view of the absence of provision of “accessory” in Chinese criminal law, the problem of accessory should be solved through the theory of the “unitary principal offender system”. The problems of conviction and punishment which cannot be solved through the theory of dividing system can be solved easily through the provisions of joint crime in Chinese criminal law and the interpretations of unitary principal offender system. Furthermore, the risk of expanding punishment scope of attempted offense can be improved and controlled. In terms of judicial practice, the application of the unitary principal offender system is also superior to the the theory of dividing system.