论帮助失败的可罚性

On the Punishability of Aiding Criminal Failures

摘要: 对帮助失败行为进行处罚必须先明确，帮助失败行为只有先成立帮助犯，才会涉及可罚性问题，如若不成立帮助犯，没有进行处罚的必要。所以对帮助失败行为而言，如若肯定其成立帮助犯，则意味着其已经具备了刑事可罚性，至于具体刑事责任的承担，则需结合因果力进行进一步判断。具体判断时，需要排除正犯的个人责任情节，比照所帮助的正犯进行处罚。

Abstract: The punishment for the failed act of aiding must be clearly defined first. Only by establishing an accomplice can the issue of punishment be addressed. If an accomplice is not established, there is no need to impose punishment. So for the failed act of aiding, if it is confirmed that it is an accomplice, it means that it has already possessed criminal punishment. As for the specific criminal responsibility, further judgment needs to be made based on causality. When making specific judgments, it is necessary to exclude the personal responsibility of the principal offender and impose punishment based on the assisted principal offender.