论间接正犯成立范围--以意思支配说为视角.pdf

我国主流的间接正犯范围进行检讨，对旧有范围既有缩小也有扩张。新标准下的间接正 犯范围，在正确的理论定位的前提下，填补旧有范围的缺漏同时不会无限扩大，剔除本 质上非间接正犯的类型同时不会过分限制。 关键词:间接正犯；成立范围；意思支配 Abstract As indirect principal was exotic, the research on indirect principal of Chinese Criminal Law started late. There have been already a lot of discussions on it, because they do not really understand the nature of it, and are lack of a significant breakthrough demonstration basis and grounds, so the domestic research of the Criminal Code compared to Germany and Japan is very poor. As the establishment scope is the theoretical nature of indirect principal, departure angle of our country’s mainstream viewpoint is the characteristic of non-accomplice, which is based on the theoretical position for compensating accomplice theory. This article will give up the false theory basis, comply with the contemporary independent status——indirect principal is committing crime the same as the perpetrator, re-raise establishment standard from that correct standpoint to build a solid foundation for indirect principal theory. The article firstly introduces the establishment standard and range of indirect principal, building on a non-accomplice nature, on which contemporary Chinese Criminal Law generally agrees. Briefly introduces its concept, characteristic and nature , and draws its standard from object, objective aspect , subject, subjective aspect angles, then derives six types which the majority of scholars endorse at present: the use of irresponsible men’s behavior, the use of other’s non-behavior physical activity, the use of another persons behavior which is neither intentional nor negligent, the use of another persons negligent behavior, the use of other’ s intentional