既遂或中止：主動(dòng)排除危險(xiǎn)狀態(tài)行為性質(zhì)研究
發(fā)布時(shí)間：2018-07-23 17:19
【摘要】：當(dāng)危險(xiǎn)狀態(tài)出現(xiàn)之后實(shí)害結(jié)果發(fā)生前,行為人主動(dòng)排除危險(xiǎn)狀態(tài)行為性質(zhì)如何認(rèn)定?按照我國(guó)目前的刑法理論通說認(rèn)為：危險(xiǎn)犯是指行為人實(shí)施的危害行為造成法律規(guī)定的發(fā)生某種社會(huì)危害結(jié)果的危險(xiǎn)狀態(tài)作為既遂標(biāo)志的犯罪,按照通說很容易得出該種行為應(yīng)該認(rèn)定為犯罪既遂。然而,近年來,對(duì)犯罪既遂說的質(zhì)疑越來越強(qiáng)烈,許多刑法學(xué)者從危險(xiǎn)犯概念、既遂標(biāo)準(zhǔn)、犯罪形態(tài)、刑事政策等角度入手,提出了許多新穎的觀點(diǎn)試圖取代犯罪既遂說的通說地位,包括：犯罪中止說、實(shí)害犯中止說、準(zhǔn)中止犯說、脫離自力控制說等。 多年來,刑法學(xué)者們各執(zhí)一詞,爭(zhēng)論不斷,但是至今危險(xiǎn)犯中主動(dòng)排除危險(xiǎn)狀態(tài)的行為究竟應(yīng)該如何定性的問題一直沒有得到解決。本文首先從郭某破壞交通設(shè)施案入手,引出主動(dòng)排除危險(xiǎn)狀態(tài)的行為是既遂還是中止的爭(zhēng)議。其次,對(duì)中止說對(duì)既遂說的批判進(jìn)行了梳理,然后既遂說對(duì)中止說的批評(píng)進(jìn)行了反駁。除了中止說之外,還存在既遂與中止的中間路線,本文對(duì)中間路線進(jìn)行了概述和評(píng)析。再次,論證了犯罪既遂說的理論優(yōu)勢(shì),犯罪既遂說符合危險(xiǎn)犯的立法初衷、契合我國(guó)危險(xiǎn)犯理論和故意犯罪停止形態(tài)的理論,法定危險(xiǎn)狀態(tài)出現(xiàn)是危險(xiǎn)犯既遂的標(biāo)準(zhǔn),此時(shí)已經(jīng)具備犯罪既遂的所有構(gòu)成要件,認(rèn)定為犯罪既遂毋庸置疑,其通說地位無可取代。但是犯罪既遂說也有缺陷,其缺陷表現(xiàn)在在危險(xiǎn)犯立法之初忽略了行為人的主觀意志,導(dǎo)致主動(dòng)排除狀態(tài)的行為量刑偏重,不利于鼓勵(lì)行為入主動(dòng)悔過。這也正是犯罪既遂說飽受詬病的主要原因,學(xué)者們提出的各種中止說無非也是想方設(shè)法的減輕行為人的處罰,為成立犯罪中止尋找各種理由和借口。 但是,我國(guó)目前的刑法理論體系已經(jīng)建立,危險(xiǎn)犯理論是我國(guó)刑法理論體系的重要組成部分,試圖對(duì)危險(xiǎn)犯概念、犯罪形態(tài)理論進(jìn)行重構(gòu),受牽連的不僅是危險(xiǎn)犯,還有結(jié)果犯、行為犯和舉動(dòng)犯,對(duì)我國(guó)刑法理論來說無疑是一次大災(zāi)難,可謂牽一發(fā)而動(dòng)全身。因此,要解決主動(dòng)排除危險(xiǎn)狀態(tài)行為定性問題,在堅(jiān)持通說的基礎(chǔ)上彌補(bǔ)通說的缺陷是最明智的選擇,也是解決這一問題的最佳方案。主動(dòng)排除危險(xiǎn)狀態(tài)的行為是犯罪既遂,但是為了彌補(bǔ)犯罪既遂說的缺陷,考慮到危險(xiǎn)犯的特殊情況,應(yīng)當(dāng)設(shè)置特殊的立法條文對(duì)主動(dòng)排除危險(xiǎn)的行為予以減輕處罰,符合緩刑適用條件的應(yīng)當(dāng)適用緩刑,以解決量刑過重的問題。犯罪既遂后主動(dòng)悔罪,刑法規(guī)定減輕或免除處罰的國(guó)內(nèi)外均有前例可供借鑒。我國(guó)有行賄后追溯前主動(dòng)交代行賄行為可以減輕或免除處罰的法律規(guī)定,德國(guó)在對(duì)危險(xiǎn)犯的立法中,規(guī)定了主動(dòng)排除危險(xiǎn)的悔罪情節(jié),可以減輕或免除處罰。由此可提出立法建議,我國(guó)可借鑒德國(guó)的立法,在我國(guó)危險(xiǎn)犯的立法中,專門為危險(xiǎn)犯設(shè)立一款特殊條文,但是不應(yīng)當(dāng)免除處罰,只應(yīng)根據(jù)案件的具體情況減輕處罰,因?yàn)槲ｋU(xiǎn)犯畢竟是危害公共安全的重大犯罪,本著對(duì)公民的生命財(cái)產(chǎn)安全負(fù)責(zé)任的態(tài)度,危險(xiǎn)犯應(yīng)該與普通犯罪有所區(qū)別,其刑罰要比普通犯罪的刑罰要重一些,而且該種行為是犯罪既遂,不是犯罪中止,不能因?yàn)樽罱K沒有造成嚴(yán)重后果就免除處罰。綜上所述,建議在危險(xiǎn)犯立法上增加一款主動(dòng)悔罪條款,即：行為人主動(dòng)排除危險(xiǎn)狀態(tài)的,應(yīng)當(dāng)減輕處罰。
[Abstract]:In accordance with the current theory of criminal law in China, according to the current theory of criminal law in China, dangerous offense refers to the crime of the dangerous state of a certain social harm caused by the law, which is defined by the law as the accomplished symbol. It is easy to conclude that this kind of behavior should be regarded as an accomplished crime. However, in recent years, the question of the accomplishment of the crime is becoming more and more intense. Many criminal scholars, starting with the concept of dangerous offense, the standard of accomplished offense, the form of crime, the criminal policy and so on, have put forward a lot of new ideas to replace the status of the crime accomplished theory, including: The theory of discontinuance of crime, the theory of discontinuance of real offenders, the theory of quasi discontinuation of offenders, and the theory of self control.
For many years, the scholars of the criminal law have their own words and arguments, but the problem of how to eliminate the dangerous state actively in dangerous criminals has not been solved. I have combed the criticism of the accomplished attempt, and then refute the criticism of the discontinuance. Besides the suspension, there are also the intermediate lines of accomplished and discontinuation. This article gives an overview and analysis of the intermediate line. Again, it demonstrates the theoretical advantage of the accomplished crime theory, and the criminal accomplished attempt is in accordance with the legislative original intention of the dangerous offenders. According to the theory of the theory of dangerous crime and the stop form of intentional crime in China, the emergence of a statutory danger state is the standard of the accomplished offense, and at this time it has all the elements of the accomplished offense. It is affirmated that the accomplished crime is no doubt and its status is not replaced. However, the criminal accomplished theory is also defective, and its defects are manifested in the legislation of the dangerous offense. At the beginning, the subjective will of the perpetrator is ignored, which leads to the action of the active exclusion of the state, which is not conducive to the encouragement of the act of repentance. This is also the main reason that the criminal accomplished offense has been criticized. Reasons and excuses.
However, the theoretical system of criminal law has been established in our country. The theory of dangerous crime is an important part of the theoretical system of criminal law in our country. It tries to reconstruct the concept of dangerous crime and the theory of criminal form. It is not only a dangerous crime, but also the consequential offense, the act offense and the act offender, which is undoubtedly a catastrophe for the criminal law theory of our country. Therefore, it is the most sensible choice to make up the defects of the general statement on the basis of insisting on the general theory, and also the best solution to solve the problem. The act of eliminating the dangerous state actively is the accomplishment of the crime, but it is to make up for the defects of the accomplished crime and consider the danger of the crime. Special circumstances of the criminal offense should be set up with special legislative provisions to mitigate the actions to eliminate the danger actively. The probation should be applied to the applicable conditions of probation to solve the problem of excessive sentencing. After the accomplishment of the crime, the criminal law has taken the initiative to repent, and the criminal law stipulates the mitigation or exemption from punishment at home and abroad for reference. After the bribery of our country, the state has a bribe. In the legislation of the dangerous offenders, Germany stipulates the active exclusion of dangerous repentance in the legislation of dangerous offenders, which can reduce or exempt the penitence. Therefore, the legislative suggestion can be put forward. In our country, we can draw on German legislation and set up a dangerous criminal in our country's dangerous offense legislation. Special provisions, but should not be exempt from punishment, should only be mitigated in accordance with the specific circumstances of the case, because the dangerous offenders, after all, are major crimes against public safety. In the light of the attitude towards the safety of citizens' lives and property, dangerous offenders should be distinguished from ordinary crimes, and their penalties are more heavier than those of ordinary crimes, And this kind of act is a crime accomplished, not a crime discontinuation, can not be exempted from punishment because of no serious consequences in the end. In summary, it is suggested that an active penitence clause should be added to the legislation of dangerous offenders, that is, the perpetrator should take the initiative to exclude the state of danger and should mitigate the punishment.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D914
本文編號(hào)：2140099
[Abstract]:In accordance with the current theory of criminal law in China, according to the current theory of criminal law in China, dangerous offense refers to the crime of the dangerous state of a certain social harm caused by the law, which is defined by the law as the accomplished symbol. It is easy to conclude that this kind of behavior should be regarded as an accomplished crime. However, in recent years, the question of the accomplishment of the crime is becoming more and more intense. Many criminal scholars, starting with the concept of dangerous offense, the standard of accomplished offense, the form of crime, the criminal policy and so on, have put forward a lot of new ideas to replace the status of the crime accomplished theory, including: The theory of discontinuance of crime, the theory of discontinuance of real offenders, the theory of quasi discontinuation of offenders, and the theory of self control.
For many years, the scholars of the criminal law have their own words and arguments, but the problem of how to eliminate the dangerous state actively in dangerous criminals has not been solved. I have combed the criticism of the accomplished attempt, and then refute the criticism of the discontinuance. Besides the suspension, there are also the intermediate lines of accomplished and discontinuation. This article gives an overview and analysis of the intermediate line. Again, it demonstrates the theoretical advantage of the accomplished crime theory, and the criminal accomplished attempt is in accordance with the legislative original intention of the dangerous offenders. According to the theory of the theory of dangerous crime and the stop form of intentional crime in China, the emergence of a statutory danger state is the standard of the accomplished offense, and at this time it has all the elements of the accomplished offense. It is affirmated that the accomplished crime is no doubt and its status is not replaced. However, the criminal accomplished theory is also defective, and its defects are manifested in the legislation of the dangerous offense. At the beginning, the subjective will of the perpetrator is ignored, which leads to the action of the active exclusion of the state, which is not conducive to the encouragement of the act of repentance. This is also the main reason that the criminal accomplished offense has been criticized. Reasons and excuses.
However, the theoretical system of criminal law has been established in our country. The theory of dangerous crime is an important part of the theoretical system of criminal law in our country. It tries to reconstruct the concept of dangerous crime and the theory of criminal form. It is not only a dangerous crime, but also the consequential offense, the act offense and the act offender, which is undoubtedly a catastrophe for the criminal law theory of our country. Therefore, it is the most sensible choice to make up the defects of the general statement on the basis of insisting on the general theory, and also the best solution to solve the problem. The act of eliminating the dangerous state actively is the accomplishment of the crime, but it is to make up for the defects of the accomplished crime and consider the danger of the crime. Special circumstances of the criminal offense should be set up with special legislative provisions to mitigate the actions to eliminate the danger actively. The probation should be applied to the applicable conditions of probation to solve the problem of excessive sentencing. After the accomplishment of the crime, the criminal law has taken the initiative to repent, and the criminal law stipulates the mitigation or exemption from punishment at home and abroad for reference. After the bribery of our country, the state has a bribe. In the legislation of the dangerous offenders, Germany stipulates the active exclusion of dangerous repentance in the legislation of dangerous offenders, which can reduce or exempt the penitence. Therefore, the legislative suggestion can be put forward. In our country, we can draw on German legislation and set up a dangerous criminal in our country's dangerous offense legislation. Special provisions, but should not be exempt from punishment, should only be mitigated in accordance with the specific circumstances of the case, because the dangerous offenders, after all, are major crimes against public safety. In the light of the attitude towards the safety of citizens' lives and property, dangerous offenders should be distinguished from ordinary crimes, and their penalties are more heavier than those of ordinary crimes, And this kind of act is a crime accomplished, not a crime discontinuation, can not be exempted from punishment because of no serious consequences in the end. In summary, it is suggested that an active penitence clause should be added to the legislation of dangerous offenders, that is, the perpetrator should take the initiative to exclude the state of danger and should mitigate the punishment.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D914
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