共同犯罪认定中“故意”的判断——以案例研究为视角

The Judgment of “Intention” in the Determination of Joint Crime —From the Perspective of Case Study

摘要: 在具体案例中，运用动机与故意的关系，推定犯罪故意。利用案件中多个间接证据反映的基础事实，进行综合分析，推定主观明知。把握共同犯罪的概念，其解决的是客观归责问题，即侧重点在不法层面，而不在责任层面；在不法层面符合相应条件，便成立不法层面的共同犯罪，而后从责任层面，判别各参与人能否具备责任因素，若具备责任因素，则成立最终意义上的共同犯罪，反之不成立犯罪。同时，案件中，行为人屡次实施相同违法行为，但行为前后的犯罪故意具有差异，应准确判断其是否为牵连犯、连续犯、想象竞合犯，从而明确罪数问题。

Abstract: In specific cases, the relationship between motivation and intention is used to infer criminal intention. Based on the basic facts reflected by multiple indirect evidence in the case, comprehensive analysis is conducted and subjective knowledge is presumed. Grasping the concept of joint crime, it solves the problem of objective imputation, that is, the focus is on the illegal level, not on the responsibility level; If the corresponding conditions are met at the illegal level, the joint crime at the illegal level is established, and then from the responsibility level, it is judged whether each participant can have the responsibility factor. If it has the responsibility factor, the joint crime in the final sense is established; otherwise, the crime is not established. At the same time, in the case, the perpetrator repeatedly committed the same illegal act, but the criminal intention before and after the act is different. We should accurately judge whether it is an implicated crime, continuous crime and imaginative joined crime, so as to clarify the number of crimes.