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我国刑法学通说认为,共同犯罪必须是所有共犯均构成犯罪,且教唆的对象限于具有刑事责任能力的人,因而我们采取的是极端从属性说。事实上,与我国一样采取二元论共犯体系的日本刑法已完全摒弃了极端从属性说,而以限制从属性说为通说,且因违法的相对性理论的提出,最小从属性说的影响力日渐扩大。借鉴日本共犯的从属性理论,探讨要素从属性的内涵,倡导最小从属性说,对于发展我国的共犯理论,解决相关实际问题具有积极意义。
The criminal law of our country is generally believed that the common crime must be that all accomplices constitute a crime, and the object of astigmatism is limited to people who have the capacity of criminal responsibility. Therefore, we take the extreme subordination theory. In fact, Japan’s criminal law, which adopted the dualistic system of accomplices as its counterpart in our country, completely abandoned the claim of extreme subordination and stated that limitation of subordination, and that the influence of the principle of minimum subordination is gradually increasing due to the theory of relativity of illegality expand. Learning from the subordinate theory of the accomplice in Japan, discussing the connotation of the subordinate element and advocating the minimal subordinate theory have positive significance for the development of our country’s theory of accomplice and the solution of related practical problems.