试论间接正犯承认的必要性及其理论依据

摘要

间接正犯并不是正犯概念诞生时就内含的部分,而是随着司法实践和刑法理论的发展,对正犯概念的一种补充和完善;作为间接正犯存在的理论依据,较为适当的应是从利用人和被利用人两方面出发,既坚持主客观相统一的原则,又能体现间接正犯本身特性的＂工具理论＂。%The conception of indirect accomplice is not contained when the concept of principal offender was born,but is a supplement and perfect of the concept of principal offender,with the judicial practice and the development of criminal law theory;As the theoretical basis of the conception of indirect accomplice′s existing,a more appropriate approach is starting from the two areas including the user and being used,both adhering to the objective and subjective principle of unity,but also reflecting the ＂tool theory＂ about the conception of indirect accomplice.