相較于直接進入量刑層面的單一制,區分制于定罪階段先期實現了對參與行為的差異性規范評價,真正實現了對共同犯罪的精巧解釋。然而,現有的正犯標準,無法彰顯區分制的優勢。正犯標準實質化的路徑以"重要作用"、"犯罪事實支配"這類具有偶然性的事后作用為準據,非但無法識別參與行為的規范性差異,反而導致正犯類型和主犯概念不分、區分制與單一制趨同的被動局面。回歸形式標準的解決路徑,更是忽視了正犯類型的規范屬性,實為理論的倒退。為真正彰顯區分制的體系優勢,應將正犯標準從行為后的"實際作用",轉向行為時的"規范實現能力"。這一指向構成要件的具體的行為能力,能夠真正體現正犯區別于主犯的獨立個性,而且是認定正犯的唯一的規范性標尺,其既不承認存在不同的正犯類型,亦不認同正犯的直接—間接模式。

Compared with the unitary system of joint crime which directly enters into the stage of sentencing,the differentiated system which distinguishes between core offender and accomplice in joint crime has accomplished different normative evaluation of the participative behaviors in the stage of crime constitution in advance,thus realizing the comprehensive and exquisite explanation of joint crime in particular. However,the existing standards about the distinction between core offender and accomplice just can not show the advantages of the differentiated system. The substantiality of the concept of core offender is based on accidental effect of post-event such as "important role" or "domination of the facts," which not only fails to identify the normative differences in participative behaviors,but also leads to assimilation of the concept of core offender and principle offender,and the convergence of the unitary system and the differentiated system. The approach of returning to the formal standard ignores the normative character of the core offender even more,and is actually a regression in theoretical development. In order to consolidate and highlight the advantage of the differentiated system,the standard of core offender should be changed from "post-effect" to "behavior ability during the happening," which can manifest the independent character of the core offender. The standard of "behavior ability to realize the crime constitution" is the only norm for identifying the core offender,neither the existence of different types of core offenders nor the direct-indirect mode of core offender are acknowledged.