“间接正犯”是极端从属性理论下弥补共犯处罚漏洞的产物,本应随着极端从属性说的式微而退出刑法舞台,然而多数论者将“间接正犯”视为正犯反使其愈发扩张。事实上,关于间接正犯“正犯性”论证的观点难以自圆其说。立足于二元区分体制与限制正犯语境,间接正犯行为结构具有实行从属性特征,符合共犯从属性理论的第一层次要求,具备成立共犯的行为基础;于第二层次要素从属性中采取最小从属性说,在此观念下间接正犯概念失去适用的空间,原来的“间接正犯”类型行为可还原为共犯形态进行处理。具体而言,利用无责任能力者的场合、利用他人的错误的场合、利用他人的合法行为的场合、强制支配行为场合,幕后行为人应按教唆犯论处。 Indirect guilty is the product of making up for the loopholes in accomplicement under the theory of extreme subordination, and should be withdrawn from the stage of criminal law with the exaggeration of extreme subordination. However, most theorists regard “indirect guilty” as a guilty conscientious Its growing expansion. In fact, it is difficult to justify the view that indirect indirect guilty of “positive guiltyness” argues. Based on the dualistic system of distinction and the limitation of the guilty conscience, the structure of indirect offenses possesses the characteristics of subordinate features and conforms to the requirements of the first level of the theory of co-subordinate dependencies and possesses the basis for the act of forming an accomplice. At the second level, According to the attribute, the concept of indirect principal offender loses applicable space under this concept. The original type of “indirect principal offense” can be restored to the form of accomplice. To be more specific, in the case of those who are not accountable for their abilities, they are forced to dominate the occasion where the wrongful use of others is exploited and the lawful behavior of others is exploited.