在共同犯罪中,正犯支配犯罪进程,帮助犯间接造成法益侵害。坚持犯罪事实支配说,正犯是犯罪过程的核心,帮助犯依附于正犯。坚持因果共犯论,肯定帮助行为和构成要件结果必须具有因果关系。在因果关系不要说逐渐失去支持者后,帮助犯的因果关系争议主要集中在采取何种学说作为评判标准。因果关系必要说主要分成两大阵营:一是支持帮助行为促进正犯实行行为的因果关系论,二是支持帮助行为促进正犯结果的因果关系论。当中也有承认帮助行为对实行行为或正犯结果的助益都应肯定因果关系的观点。在肯定因果关系必要说的前提下,应选择“促进的因果关系说”。要想认定帮助犯的因果关系,只要帮助行为和正犯结果之间有促进或者使得变得容易的情形即可。促进的因果关系说将帮助犯的因果关系仍限制在行为与结果的范畴当中,抓住了帮助行为对于法益侵害的间接性,同时又抓住其使得犯罪更易得逞的本质。促进的因果关系说很好的区分了对既遂的帮助和未遂的帮助,使得对帮助犯不同情形的处罚没有遗漏。同时,促进的因果关系说又不完全忽视行为本身的无价值。若帮助行为阻碍了犯罪进程,只要在实务案例当中其具备物理或心理因果性,帮助行为的存在即使削弱了法益被侵害的风险,仍然可以判定帮助犯的成立。在促进的因果关系说下,帮助犯的身份脱离的核心就是帮助行为因果性的祛除问题。
In In a joint crime, the offender is in charge of the criminal process and helps the indirect cause of legal infringement. Adhere to the fact that the crime is dominated, the criminal is the core of the criminal process, and the helper is attached to the criminal. Insisting on the theory of the accomplice of cause and effect, the author affirms that there must be causality between the helping act and the constitutive elements of the principal offender.After the Negative causality theory loses the supporter, the help offender causality dispute mainly concentrates in what kind of doctrine takes the judgment standard. The necessary theory of causality is divided into two camps: one is to support the theory of causality that helps behavior promote the behavior of the principal offender; the other is to support the theory of causality that helps behavior promote the result of the principal offender.There is also a view that both the helping behavior and the helping behavior should affirm the causal relationship.Under the premise of affirming the causal relationship, we should choose “the causal relationship of promotion”. In order to determine the causal relationship of the accessory offender, it is only necessary to promote or make it easier to assist the act and the offense. The promotion of causality will help to limit the causal relationship of the offense to the scope of behavior and results, and grasp the indirectness of the help behavior against the legal benefit, while at the same time grasping the essence of making the crime easier to obtain. The causal relationship of promotion is a good distinction between the help and the help of the shackles, so that the punishment for helping to commit different situations is not missed. At the same time, the causal relationship of promotion does not completely ignore the value of the act itself. Help behavior hinders the criminal process. As long as it has physical or psychological causality in the practical case, even if the existence of the help behavior weakens the risk of the legal benefit being infringed, the accessory offender can still be determined. Under the promotion of causality, the core of helping offenders' identity is to help eliminate the causality of behavior.