摘要： 共同犯罪中帮助犯应当对违法所得承担有限抑或连带退赔责任,司法立场历来不统一,存在全部连带责任说、部分连带责任说以及以实际所得为限退赔说等多种观点,究其原因,理论与实践对没收违法所得退赔责任的性质究竟是刑罚还是保安处分一直摇摆不定。应明确,没收违法所得是一种财产衡平措施,目的在于昭示任何人不得通过犯罪获利,预防行为人利用违法所得再次实施犯罪。共同犯罪中帮助犯的范围宜采取行为共同说的共犯观点,在确定共同犯罪人的整体退赔范围前提下,帮助犯仅在其实质支配范围内承担退赔责任。基于此,共同犯罪中帮助犯的违法所得退赔责任为:首先,帮助犯以实施犯罪为目的而获取的工资、提成等属于退赔范围;其次,行为人需要对其实际占有的违法所得,承担连带退赔责任;最后,对于既非工资分红,也未实际占有的违法所得,要以实质处分和支配权限为标准,结合行为人的职位、工作性质以及银行流水等综合判断是否应当退赔。

关键词: 帮助犯, 没收违法所得, 财产衡平, 特殊预防, 支配力

Abstract: In joint crimes, the judicial position of whether the helper should bear limited liability for unlawful gains or joint and several restitution liability has always been inconsistent, and there are various viewpoints such as the theory of joint and several liability, the theory of partial joint and several liability, and the theory of restitution limited to actual gains.It should be made clear that the confiscation of unlawful gains is a property-based equitable measure aiming to demonstrate that no one can profit from committing a crime and to prevent the perpetrator from using the proceeds to commit another crime.The scope of the aider in a joint crime should adopt the accomplice viewpoint of the theory of joint conduct, and on the premise of determining the overall scope of restitution of the joint offender, the aider bears the liability for restitution only within the scope of his substantive control.Based on this, the liability for restitution of illegal gains of the helper in a joint crime is as follows: first, the wages and commissions obtained by the aider for the purpose of committing the crime are within the scope of restitution; secondly, the perpetrator needs to bear joint and several liability for restitution of the illegal gains in his actual possession; finally, for unlawful gains that are neither wage dividends nor actually possessed, the substantive disposition and control authority should be used as the standard, and whether the compensation should be returned should be comprehensively determined in light of the actor's position, the nature of the work, and bank statements.

Key words: Assisting Criminals, Confiscate Illegal Gains, Property Equity, Special Prevention Measures, Dominance Power