摘要： 有组织犯罪是复杂且特殊的共同犯罪类型。区分制与单一制难以合理应对有组织犯罪的归责问题,根源在于二者对有组织犯罪中构成要件实现方式的理解偏差。有组织犯罪下的构成要件由组织体作为一个整体所塑造,个人归责根据在于对组织体作为“危险源”的风险管辖义务的不履行。据此,有组织犯罪的共犯归责应以“整体——还原论”为分析框架:在整体论层面,应在“秩序说”基础上形成聚焦组织利益与组织规约的判断规则;在还原论层面,应合理界定各级组织成员的风险管辖范围,判断其在客观上是否履行了风险管辖义务,并对首要分子与其他组织成员的“故意”内涵作区别化认定。

关键词: 有组织犯罪, 共同犯罪, 整体论, 还原论

Abstract: Organized crime is not only a criminal phenomenon but also a complex and unique form of joint crime.The reason why the differentiated and unitary imputation models fail to address the issue of imputation of organized crime is that they misunderstand how crime is committed in organized crime.In organized crime, the crime is committed by the organization as a whole, and individual responsibility lies in the failure to fulfill the risk control obligation for the organization as a “source of danger”.Therefore, the imputation of organized crime should be analyzed within a “holistic-reductionist” two-tier framework.At the holistic level, adjudicative rules focusing on organizational interests and norms should be formed based on the theory of order.At the reductionist level, the risk control scope for organizational members should be reasonably defined to determine whether they have fulfilled the risk control obligation, and a differentiated connotation of “intention” for heads and other group members should be adopted.

Key words: Organized Crime, Joint Crime, Holism, Reductionism