二人以上共同实施基本的犯罪行为时,由其中一人或数人的行为引起了较重的结果,刑法 对该较重的结果规定了比基本犯罪的刑罚更重的刑罚,没有直接引起加重结果的其余共同犯罪 人应否对该较重的结果承担刑事责任呢?对此,中国刑法理论通行的观点认为,基本罪的共同 正犯都应该对加重结果负责。但是,对于帮助犯、教唆犯能否成立结果加重犯的共犯,是否对 加重结果承担刑事责任,存在不同观点。 基于刑法的规定,中国的共同犯罪理论认为成立共同犯罪必须是两人以上主观上有共同犯 罪的故意,客观上有共同犯罪的行为。因此,重结果为过失形态的结果加重犯的共犯是不成立 的,不论是共同正犯,还是教唆犯或帮助犯。所以,法中结果加重犯的共犯之成立与否,应当 分为以下两种情况:对于加重结果的罪过形式为故意的结果加重犯,基本罪的共犯能够就加重 结果成立共同犯罪;对于加重结果的罪过形式为过失的结果加重犯,基本罪的共犯不能就加重 结果成立结果加重犯的共犯。 基本罪的共犯是否应当就加重结果承担刑事责任?对于重结果可以为故意形态的结果加重 犯,实行行为人故意导致了重结果的发生的,共犯与之有共同故意的,应成立结果加重犯之共 犯,就重结果共同承担刑事责任;不具有共同故意,不能成立结果加重犯的共犯,但共犯对于 实行行为人故意所造成的加重结果应当预见并且能够预见的,应当承担过失的责任;否则只能 由重结果的引起人承担责任。对于实行行为人的行为过失导致了较重的结果时,虽然不成立结 果加重犯的共犯,但这并不意味着可以认为基本罪的共犯一概不对该加重结果承担责任;对加 重结果的发生具有过失的共犯,应当承担其刑事责任。 结果加重犯由于基本的犯罪行为包含发生一定重结果的高度危险性,所以共同故意实施基 本犯罪的行为人,对重结果的发生应当具有具体的预见可能性,因而应当认为有避免重结果发 生的特别注意义务。以共同犯罪的意思实施基本罪时,各共同犯罪人相互利用、补充对方的行 为,这就使得各共犯的行为成为了一个整体。在这种情况下,各共犯应当预见到这个行为整体 有导致重结果发生的可能,从而负有避免该行为整体造成重结果发生的特别注意义务。因此, 各共犯不仅要负有避免自己的行为发生加重结果的义务,而且还负有避免他人的行为造成加重 结果的义务。当共犯负有这种防止加重结果发生的义务,但没有加以注意,以致产生了加重结 果时,就存在导致加重结果发生的过失。因此,共犯应当对自己的过失行为承担刑事责任。然 而,需要强调的是,并不能排除在具体案件中,共犯对加重结果并不一定都能够预见的情况, 如果一律判令其承担加重责任也是不合理的。
In the aggravated consequential offense of joint crime, the problem need to research is that more than two people jointly implement the basic crime, by one person or several people's behaviors causing heavier results, the criminal law provides the heavier penalties for the basic crime penalty, so the other co-perpetrators who do not directly cause the aggravated consequences should bear criminal responsibility for more serious results? In this regard, the prevailing view of Chinese criminal law theory is that the common principal offender of the basic crime should be responsible for the aggravated results, because the common criminals are the implementation of basic crime behavior, and the results may be equal. Besides, there is subjective negligence, so it should be responsible for the results of the increase. However, for narrowly committed accomplice, it is not directly involved in the implementation of the act of perpetrating, then whether to set up the results of aggravated accomplice, whether to bear the criminal responsibility of the results? Chinese scholars have different views. This article starts with the intentional injury case in practice, and puts forward the controversial issue. By examining the different views of scholars in Japanese criminal law theory, this paper analyzes various analyses of Chinese scholars, and puts forward their own views based on the provisions of Chinese criminal law. Article 25 of the Criminal Law of the People's Republic of China stipulates that a joint crime refers to an intentional crime committed by two or more persons jointly. A negligent crime committed by two or more persons jointly shall not be punished as a joint crime; however, those who should bear criminal responsibility shall be individually punished according to the crimes they have committed. Therefore, based on the provisions of the Criminal Law, China's common crime theory holds the idea that the establishment of a common crime must be the perpetrators in the joint implementation of a certain crime mean, mutual use, and complement each other’s behavior, so that the behavior of the perpetrators as a whole achieves crime. That is, it must be that more than two people have deliberately subjective common crime, common crime objectively. The so-called "common criminal intent", refers to the common criminals through contacts, a common understanding of their criminal acts will entail harmful consequences to society. They participate in the joint crime and hope or indulge the outcome of mental attitude. Negligent crime, for the perpetrators, it is not impossible to form the meaning of contact, and can’t set up a joint crime. Therefore, from the provisions of the current criminal law in China and the traditional theory of criminal law, the joint crime that the aggravated consequential offense with the heavier result in negligence form is not established, whether it is a common prisoner, or an instigator or help offenders. On the above analysis, the establishment of the accomplice of the aggravated offense in the Chinese criminal law should be divided into the following two cases: Firstly, for the intentional aggravated consequential offense, accomplice of the basic crime can increase results to form the joint crime. However, the occurrence of the results of all the actors must have a common intention. If all or two or more part of the perpetrators deliberately cause the occurrence of heavy results, but there is no common meaning, only a single intention, the heavier result is only committed at the same time. Secondly, for the negligent aggravated consequential offense, the accomplice of the crime can’t be aggravated by the results of the establishment of aggravated consequential offense. So, when two or more people carry out a specific crime, due to the act of the perpetrator led to the heavier result, whether the perpetrator of the basic crime should bear the criminal responsibility for the result of the increase? For the serious results for the intentional form of the aggravated consequential offense, the perpetrator intentionally cause heavy results, and people with a common intentional accomplice should set up the consequential offense accomplice, so they should bear the heavy result of criminal responsibility; With no joint intent, it can’t set up the accomplice of the aggravated consequential offense, but accomplice who act intentionally cause the aggravating results should be foreseeable and unforeseeable, should bear the responsibility for negligence; otherwise the person cause the serious result should take the responsibility. For the implementation of the act of negligence result in more serious results, although the joint crime of aggravated consequential offense is not established, but this does not mean that there can be an accomplice of the crime are not the responsibility for the aggravated consequence; negligence accomplice who has aggravated results shall bear criminal responsibility. The aggregated consequential offense, for highly dangerous of certain aggravated result of the crime, the criminals commit crime with mutual intention should foresee the possibility of the happening aggravated results. Therefore, we should pay special duty of care for avoiding the aggravated result to happen. Committing a crime with joint offense, criminals use and comply each other’s action. In this way, the action of criminals has become a corporate entity. Under the circumstances, joint criminals should predict the action may leads aggravated result to happen. So, special duty of care for avoiding aggravated result should be paid. Consequently, not only joint criminals have the obligation to avoid the aggravated result of own action, but also obligation on preventing aggravated result of other person’s action. Negligence existing when joint criminals ignore this kind of obligation and aggravated result is caused. Hence joint criminals should responsible for their own negligence. However, for the record, the accomplice commit the basic crime intentionally should recognize the danger caused by the action and predict the possibility of the aggravated result. We can’t get rid of the condition that the accomplice may not predict the aggravated result caused by their behavior. It cannot be justified to handle the aggravated responsibility. In conclusion,the crime is committed with mutual intent by two persons, whose behavior leads to aggravated results and the criminal law stipulates heavy sentence. The accomplice in criminal activities should bear responsibility. However, joint crime is invalid for the aggravated result. The accomplice should have taken responsibility for negligence, but it doesn’t mean give the same punishment on the accomplice. A distinction must be taken into account when deciding sentence. Particularly, relatively heavy sentence should correspond to the aggravated result caused by negligence. For his action leads to the aggravated result, it’s the demands of punishment shall be commensurate with the crime.