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对于刑法必须进行体系解释,割裂规范之间的逻辑关系只会背离理论运用的完整性。如果将我国《刑法》关于预备犯、共同犯罪的相关规定进行体系性思考,单一制与区分制、从属性与独立性的区分又显现出另一番图景:其一,如果实行预备犯的普遍处罚制,共犯从属性说、共犯独立性说、单一正犯体系之间无万丈鸿沟,罪之有无立场一致,只是犯罪形态可能有异——预备与未遂;其二,客观主义之下,于定罪量刑而言,单一制与区分制之共犯从属性并无二致;其三,采区分制(主要是共犯从属性说)之学者,无视预备犯与单一制的理论可以共通,指摘其违背罪刑法定原则之论难以成立;其四,犯罪形态上,由于我国《刑法》未确立广义未遂之概念,单一制有效避免了“一个行为两种状态”的理论困境。在此基础上,如进一步结合超越国别之单一正犯体系的优势,不难发现,宣示共犯从属性之二元犯罪参与体系与一元犯罪参与体系的立场无根本对立,而且后者的论理高度一致、科刑亦属相对合理。因此,我国刑法理论与实践有必要采用一元犯罪参与体系。
For the criminal law must be system interpretation, the logical relationship between the separation of the rules will only deviate from the integrity of the theory. If we systematically think about the relevant provisions of preparatory and joint crimes in the Criminal Law of our country, the distinction between singularity and distinction means that the distinction between affiliation and independence shows another picture: First, if the implementation of preparatory crime is widespread Punishment System and Accomplice Subordination Theory says the principle of accomplice independence states that there is no glorification of the divide between single criminal offenders and whether there is a consensus on the crime but only that the criminal patterns may be different - preparation and attempted. Second, under objectivism, In terms of conviction and sentencing, there is no difference in the co-accomplice subordination between unitary and divisional systems. Thirdly, scholars who adopt a division system (mainly co-subordinate) say that they neglect It is difficult to establish the theory of the principle of legally punishable crime. Fourthly, due to the concept of generalized attempted crime in our criminal law, the single system effectively avoids the theoretical predicament of “one state of behavior and two states”. On this basis, if we further combine the advantages of a single principal offender system beyond the country, it is not difficult to find that there is no fundamental contradiction between the dual crime participation system that declares the subordinate accomplice attribute and the position of the one-yuan crime participation system, and the latter’s arguments are highly consistent , Section punishment is also relatively reasonable. Therefore, the theory and practice of criminal law in our country need to adopt one-dimensional crime participation system.