对向参与行为的可罚性问题,存在立法者意思说、实质说和并用说的学说分歧。并用说在根据共犯原理探讨对向参与行为实质可罚性的基础上,结合违法程度、法益均衡、比例原则等要求,限定对向参与行为的处罚范围,是较可取的立场。并用说不仅可以为对向犯个罪的限缩解释提供实质依据,而且可以类型化地审视对向参与行为的可罚范围,即对于片面对向犯,如果是具有行为扩散性的离心犯,可依据被害参与原理和共犯从属性特征,排除其必要之对向参与行为的可罚性;而对于非扩散性的向心犯,其对向参与行为,除属于被害参与类型,抑或参照刑法相关规定,基于比例原则和体系解释予以排除以外,只要该当教唆或帮助行为,就应当以共犯论处。 There is the idea of ​​lawmakers that there is a difference between the doctrine of substantive and concurrent use in the question of the punitiveity of participation in conduct. On the basis of discussing the substantive punitiveness of the opposite participation behavior according to the principle of accomplice and combining with the requirements of the degree of violation of law, balance of interests and benefits, and the principle of proportionality, it is preferable to limit the scope of punishment for the opposite participation. It can not only provide a substantive basis for restricting the interpretation of a crime, but also can scrutinize the scope of punishment for a participatory act in terms of types, ie for the one-sided offender, if it is a behavior-diffusing centrifugal criminal , According to the principle of victim participation and the characteristics of co-accomplice subordinates, the penalty of the necessary subordinate participation can be ruled out. For the non-proliferation coroner, whether it participates in the participation, except the type of victim participation, If the relevant provisions are excluded on the basis of the principle of proportionality and the explanation of the system, they should be dealt with as an accomplice if they should be abetted or helped to act.