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共同犯罪是一种“违法”形态,而不是一种“犯罪”形态,只要二人以上之间具有行为的共犯,即可成立共同犯罪。在要素从属性问题上,限制从属性说具有妥当性,即共犯的成立,以正犯实施了符合构成要件的违法行为已足。鉴此,教唆未达刑事责任年龄但具有规范意识的他人实施盗窃行为的,二者之间成立盗窃罪的共犯。按照“共同实行、全部责任”原则,被教唆的未成年人具有全部赃物的客观不法,但因未达刑事责任年龄,不承担刑事责任。
The common crime is a kind of “illegal” form, rather than a “criminal” form, as long as there are acts of accomplices between two or more people, you can set up a joint crime. On the issue of factor subordination, it is appropriate to limit the subordinate attribute, that is, the establishment of accomplice. It is sufficient that a guilty plea violates the constituent elements. In view of this, people who have not yet reached the age of criminal responsibility but who have normative awareness of the practice of theft, establish an accomplice with theft. In accordance with the principle of “common implementation and full responsibility,” minors who have been abetted have all the stolen objective obscenities, but they are not criminally responsible for failing to reach the age of criminal responsibility.