脅從犯法律性質(zhì)研究
發(fā)布時(shí)間：2018-08-28 06:59
【摘要】：脅從犯的法律性質(zhì)確定是脅從犯理論研究的基礎(chǔ)，在如何認(rèn)定脅從犯或者在什么情況下能援引脅從犯的規(guī)定來(lái)從寬量刑，脅從犯如何量刑等一些列問(wèn)題都需要建立在對(duì)脅從犯法律性質(zhì)正確認(rèn)識(shí)基礎(chǔ)上。我國(guó)刑法理論通說(shuō)按作用標(biāo)準(zhǔn)劃分了主犯、從犯、脅從犯三種法定的獨(dú)立共犯人，但長(zhǎng)期以來(lái)，無(wú)論是理論上還是實(shí)踐上，將脅從犯作為獨(dú)立共犯人種類卻飽受詬病，理論上無(wú)法完全解釋脅從犯作為獨(dú)立共犯人所存在的一系列問(wèn)題，不過(guò)，否定脅從犯獨(dú)立共犯人的法律性質(zhì)，同樣會(huì)導(dǎo)致罪刑失衡的難題。這使得在理論上，認(rèn)定脅從犯為獨(dú)立共同犯罪人類型將使共犯體系出現(xiàn)邏輯漏洞，而在實(shí)踐中否定脅從犯的獨(dú)立共犯人屬性而認(rèn)為脅從犯屬于一種量刑情節(jié)將引起量刑實(shí)質(zhì)上的不公正。在二者之間尋求平衡，即成功避免脅從犯理論體系上的邏輯障礙，又能滿足在脅從犯適用時(shí)罪責(zé)刑相當(dāng)，不僅是給脅從犯科學(xué)合理的法律性質(zhì)歸位，更是構(gòu)建和諧的犯罪論體系所不能避免的問(wèn)題。基于上述理由，本文從解釋論的角度出發(fā)，分別站在通說(shuō)和反對(duì)者的立場(chǎng)，依次分析兩種不同學(xué)說(shuō)之間的利弊，力圖尋找通說(shuō)和反對(duì)說(shuō)的契合點(diǎn)，合理解釋脅從犯的法律性質(zhì)。并且提出，如果我國(guó)刑法在既有的解釋路徑無(wú)法妥善解決脅從犯的法律性質(zhì)定位時(shí)，就必須直面現(xiàn)行的立法缺陷，從立法論的角度尋找解決方法。 本文共四章，第一章為脅從犯的概述，本章在介紹脅從犯概念及由來(lái)的基礎(chǔ)上，，剖析脅從犯中“脅從”的本質(zhì)以及其從寬處罰的理論依據(jù)，以求在介紹脅從犯法律性質(zhì)之前對(duì)本文所探究的脅從犯有一個(gè)內(nèi)涵和外延上的界定，并引出脅從犯法律性質(zhì)爭(zhēng)議的兩種學(xué)說(shuō)。 第二章重點(diǎn)介紹了脅從犯的獨(dú)立共犯人屬性，分別從對(duì)其現(xiàn)行法依據(jù)和歸位緣由進(jìn)行深入分析，再介紹這種學(xué)說(shuō)所面臨的質(zhì)疑，總結(jié)評(píng)析兩者的理論支點(diǎn)，從而得出筆者對(duì)脅從犯法律性質(zhì)通說(shuō)的看法。 第三章作為第二章的對(duì)立觀點(diǎn)，通過(guò)介紹了域外的立法例和刑事政策的變遷為脅從犯作為量刑情節(jié)提供參考，并對(duì)脅從犯作為量刑情節(jié)的法律性質(zhì)進(jìn)行利弊分析。 第四章為前文討論的脅從犯適用困境尋求出路，在現(xiàn)行法還未修改的無(wú)奈情況下提出了脅從犯制度功能的實(shí)現(xiàn)方式，提出一系列解決方案；而在立法機(jī)會(huì)成熟時(shí)，脅從犯的修改應(yīng)該被提上日程。
[Abstract]:The determination of the legal nature of the coerced offender is the basis of the theoretical study of the coerced offender. In how to identify the coerced offender or under what circumstances the provisions of the coerced offender can be invoked to give lenient sentencing. Some problems, such as how to sentence the accomplice under duress, should be based on a correct understanding of the legal nature of the accomplice. The general theory of criminal law in our country divides three kinds of legal independent accomplices according to the function standard. However, for a long time, whether in theory or in practice, the category of accomplice as independent accomplice has been criticized. Theoretically, it is impossible to fully explain a series of problems existing in coerced accomplices as independent accomplices. However, denying the legal nature of independent accomplices of coerced accomplices will also lead to the problem of unbalance between crime and punishment. This makes it possible in theory to identify the accessory offender as an independent co-offender type, which will make the complicity system appear logical loophole. In practice, the author denies the independent accomplice of the accomplice and thinks that the subjugated offender belongs to a kind of sentencing circumstances, which will lead to the substantive injustice of sentencing. To seek a balance between the two, that is, to successfully avoid the logical obstacles in the theoretical system of coerced crime, and to satisfy the fact that the crime and punishment are equal in the application of the coerced offender, is not only a scientific and reasonable legal arrangement for the coerced offender. It is also a problem that can not be avoided by constructing a harmonious criminal theory system. Based on the above reasons, this paper analyzes the advantages and disadvantages of the two different theories from the perspective of interpretation theory and opponents respectively, and tries to find out the convergence point between the general theory and the opposition theory, and to explain the legal nature of the accessory crime under duress in a reasonable way. And it is pointed out that if our criminal law can not properly solve the legal nature of coerced offender in the existing interpretation path, we must face up to the current legislative defects and look for the solution from the angle of legislative theory. There are four chapters in this paper. The first chapter is an overview of coerced crime. On the basis of introducing the concept and origin of coerced accomplice, this chapter analyzes the essence of coerced accomplice and the theoretical basis of its lenient punishment. In order to introduce the legal nature of coerced accomplice, there is a connotation and extension of the definition of subjugation, and two theories about the legal nature dispute of coerced accomplice are introduced. The second chapter mainly introduces the independent accomplice attribute of the accomplice, analyzes the basis of its current law and the reason of its return respectively, and then introduces the doubts faced by this theory, and summarizes and comments on the theoretical fulcrum of the two theories. From this, the author's opinion on the legal nature of subjugated crime is discussed. The third chapter as the opposite point of view of the second chapter, through the introduction of extraterritorial legislative cases and the changes of criminal policy to provide a reference for the threat offender as the sentencing circumstances, and to analyze the legal nature of the subjugated offender as the sentencing circumstances of the pros and cons. The fourth chapter is to find a way out for the dilemma of the servile offenders discussed above. In the situation that the current law has not yet been amended, the author puts forward the ways to realize the function of the system of coerced offenders, and puts forward a series of solutions; when the legislative opportunity is ripe, the fourth chapter puts forward a series of solutions. The modification of the accomplice should be put on the agenda.
【學(xué)位授予單位】：華僑大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D924.1
本文編號(hào)：2208639
[Abstract]:The determination of the legal nature of the coerced offender is the basis of the theoretical study of the coerced offender. In how to identify the coerced offender or under what circumstances the provisions of the coerced offender can be invoked to give lenient sentencing. Some problems, such as how to sentence the accomplice under duress, should be based on a correct understanding of the legal nature of the accomplice. The general theory of criminal law in our country divides three kinds of legal independent accomplices according to the function standard. However, for a long time, whether in theory or in practice, the category of accomplice as independent accomplice has been criticized. Theoretically, it is impossible to fully explain a series of problems existing in coerced accomplices as independent accomplices. However, denying the legal nature of independent accomplices of coerced accomplices will also lead to the problem of unbalance between crime and punishment. This makes it possible in theory to identify the accessory offender as an independent co-offender type, which will make the complicity system appear logical loophole. In practice, the author denies the independent accomplice of the accomplice and thinks that the subjugated offender belongs to a kind of sentencing circumstances, which will lead to the substantive injustice of sentencing. To seek a balance between the two, that is, to successfully avoid the logical obstacles in the theoretical system of coerced crime, and to satisfy the fact that the crime and punishment are equal in the application of the coerced offender, is not only a scientific and reasonable legal arrangement for the coerced offender. It is also a problem that can not be avoided by constructing a harmonious criminal theory system. Based on the above reasons, this paper analyzes the advantages and disadvantages of the two different theories from the perspective of interpretation theory and opponents respectively, and tries to find out the convergence point between the general theory and the opposition theory, and to explain the legal nature of the accessory crime under duress in a reasonable way. And it is pointed out that if our criminal law can not properly solve the legal nature of coerced offender in the existing interpretation path, we must face up to the current legislative defects and look for the solution from the angle of legislative theory. There are four chapters in this paper. The first chapter is an overview of coerced crime. On the basis of introducing the concept and origin of coerced accomplice, this chapter analyzes the essence of coerced accomplice and the theoretical basis of its lenient punishment. In order to introduce the legal nature of coerced accomplice, there is a connotation and extension of the definition of subjugation, and two theories about the legal nature dispute of coerced accomplice are introduced. The second chapter mainly introduces the independent accomplice attribute of the accomplice, analyzes the basis of its current law and the reason of its return respectively, and then introduces the doubts faced by this theory, and summarizes and comments on the theoretical fulcrum of the two theories. From this, the author's opinion on the legal nature of subjugated crime is discussed. The third chapter as the opposite point of view of the second chapter, through the introduction of extraterritorial legislative cases and the changes of criminal policy to provide a reference for the threat offender as the sentencing circumstances, and to analyze the legal nature of the subjugated offender as the sentencing circumstances of the pros and cons. The fourth chapter is to find a way out for the dilemma of the servile offenders discussed above. In the situation that the current law has not yet been amended, the author puts forward the ways to realize the function of the system of coerced offenders, and puts forward a series of solutions; when the legislative opportunity is ripe, the fourth chapter puts forward a series of solutions. The modification of the accomplice should be put on the agenda.
【學(xué)位授予單位】：華僑大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D924.1
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