【作者】 王春雷；

【导师】 李洁；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 硕士

【摘要】 共同犯罪现象复杂多样,故意共同犯罪已被各国刑法理论和实践广泛接受,而过失共同正犯仍然是刑法学领域一个颇具争议的问题。是否承认过失共同正犯,基于何种理由承认过失共同正犯,是研究过失共同正犯必须解决的问题。大陆法系国家尤其是日本对于过失共同正犯的研究已经相当深入,对我国肯定过失共同正犯具有借鉴意义。本文在借鉴国外关于过失共同正犯的立法例、判例和理论研究成果的基础上,从共同犯罪的本质和过失犯的本质相结合的角度以及从犯罪构成的角度对过失共同正犯的成立根据进行了探讨。我国的司法实践也使得肯定过失共同正犯势在必行。论文肯定了过失共同正犯的成立,对于过失共同正犯的概念、成立条件、刑事责任的承担等本体问题也进行了初步研究。在分析比较故意共同犯罪与过失共同正犯的基础上,提出应该重新建构我国共同犯罪立法的模式。更多还原

【Abstract】 Recently with the different understanding of the criminal theory, negligent joint crime thus far has been one field filled with fierce controversy in the theory of criminal law. Some countries have accepted negligent joint crime. More and more scholars also have acknowledged unpremeditated coprincipal. Opposing negligent coprincipal are supported by most scholars according to the traditional joint crime system, the existing joint crime legislation is established on the basis of intentional crime. But with the development of society, a considerable portion of criminal liabilities caused by joint negligence cannot be reasonably explained under the seemingly perfect system. The aim of the thesis is acknowledging unpremeditated coprincipalin in order to solve criminal liabilities.The article is divided into three parts:the foreword, main text and epilogue.The foreword introduces the reason and the research value of negligent coprincipal. For example, although joint act is the cause of negligent crime, the causation cannot be specified; or although the causation can be specified, the negligence of each doer can only be judged to be light negligence if held as negligent crime individually.The main text is divided into four parts to introduce negligent coprincipal.The first part introduces research premiseon of the theory of joint negligence first of all. Coprincipal is not only usually used in civil law but in the theory of Chinese criminal law. The thesis disapproves the negligent joint crime concept. It holds that they are actually kinds of negligent furtherance. Generally it is non-essential to punish them . And if it is indeed essential to, they can be disposed on the basis of special remoteness principal offender. Negligence overlap is more than two doers jointly caused certain consequence, but there doesn’t exist joint attention obligation between doers. There exists essential difference between negligent coprincipal and negligent overlap: the latter belongs to individual crime category; the principles they assume criminal liability are different. Then different countries’legislation and juridical practice take different attitudes towards negligent coprincipal. In the last the debate in the academic world is even fierce. The focus of the two parts which oppose or acknowledge negligent coprincipal is intention liaison.The second part is about the reason of acknowledging negligent coprincipal . Firstly, on the foundation of essence of negligent crime and the essence of coprincipal we inquiry into the reason of acknowledging negligent coprincipal. It concludes that the essence of coprincipal lies in the fact that more than two doers regard acts of each counterpart as own ones and mutually utilizes, so as to form a uniform and organic unit and actualize component of special offence. So intention liaison is essential to coprincipal. But there is no reason to confine it to liaison of criminal intent, because it is joint act that is the central element of coprincipal. Intention liaison is only a coupling factor which facilitates joint act and explains whether act is joint. Provided that intention liaison can help to make more than two doers utilize and reinforce mutually so as to form into a uniform and organic unit, we will have full reason to regard the intention liaison as the one in terms of joint crime. Essence of negligent joint crime is violating the joint attention attention. Secondly, on the basis of Comparing with the Chinese and Japanese constitution of crime, we conclude they have mutual recognition understanding, in other words, In the objective aspects, there exists joint Ausfǔhrung which unfulfills joint attention obligation and has practical danger of causing consequence. In the subjective aspects, there exists joint negligence without fulfilling attention obligation. So we can analysis and model Japanese research results to acknowledge unpremeditated coprincipal. Lastly, acknowledging unpremeditated coprincipal is the need of Social development, fundamental research, the criminal policy of punishing joint crime. So we can prove the feasibility and possibility of acknowledge unpremeditated coprincipal.The third part conducts a systematic research on the substantial problems such as negligent coprincipal concept、constitution and its correlative problems. Negligent coprincipal is one criminal pattern in which more than two doers utilize and reinforce mutually, cooperatively conduct act with danger of causing consequence and thus is assumed with joint attention obligation to avoid the occurrence of consequence, but lead to consequence due to joint negligence of the overall actors. In briefly, negligent coprincipal is one joint criminal pattern in which more than two doers disobey joint attention obligation. The constitution of negligent coprincipal : Firstly, number of subject of crime should be above two and they should possess criminal responsibility. Secondly, they should have joint attention obligation to avoid consequence. Thirdly, they cooperatively conduct act with practical danger of causing consequence which violates joint attention obligation. Fourthly, they have joint negligence. Hence the author approves the basic principle in undertaking the criminal obligation of joint negligence offense—“part performance and total liability”, as same as joint crime. It means that every offender should undertake the liability for the entire harmful results. Moreover the author formulates the concrete principles to define the individual offender’s criminal obligation according to the role played by them in joint negligence offense. In this procedure, we should make the degree of criminal negligence and the causative relationship between negligence and its out come as the focus.The fourth part, the last one elaborates Reconsidering and reconstruction of legislation of negligent coprincipal. Negligent coprincipal and intentional joint crime both belong to joint crime category and thus should be integrated into unified joint crime legislative pattern. Furthermore, the existing joint crime legislation is established on the basis of intentional crime as its core. Although the concept、constitution categorization and the assumption of criminal liability are different, the joint crime legislation of our country can adopt dualistic and unified legislation pattern.The epilogue addresses we must realize the value the actual and theoretical significance of joint negligence offense in theory and comblining continetal law system’s legislation、legal precedents with practice to probe into chinese theory and legislation of joint negligence principle offender.更多还原