恐怖主义犯罪构成要件研究
发布时间：2018-08-09 14:02
【摘要】：当前,恐怖主义犯罪在世界范围内层出不穷,2001年美国9·11事件后,许多国家都面临着恐怖主义犯罪的严重威胁。我国同样深受其害,20世纪90年代以来,“东突”恐怖势力不断制造暴力恐怖活动,严重影响了我国西部边疆的稳定和新疆各族人民的生命财产安全。恐怖主义犯罪不再是单纯的国内恐怖主义犯罪或者国际恐怖主义犯罪问题,需要国际社会通力合作共同预防和惩治。但是恐怖主义犯罪是一种非常复杂的犯罪现象,由于世界各国在政治、经济、文化等方面的差异,基于不同的立场和利益考量,对恐怖主义犯罪认识争议差异很大。 研究恐怖主义犯罪的犯罪构成要件,特别是从我国的犯罪构成要件理论体系出发研究具有重要的理论和现实意义。为了更好地认识和理解恐怖主义犯罪,与普通刑事犯罪一样,可以从理论上分析恐怖主义犯罪的构成要件。本文以我国刑法学犯罪构成理论通说为基础,采取比较研究和实证分析的方法,从理论上深入地分析了恐怖主义犯罪的四个构成要件,并提出了立法完善建议。具体体例安排如下: 第一部分,恐怖主义犯罪概念的界定。比较分析了国际反恐公约、区域性反恐公约、国内反恐法相关概念的界定,指出了恐怖主义犯罪的基本特征。认为恐怖主义犯罪是指任何个人、组织或国家,以暴力或暴力威胁,残害无辜,制造社会恐怖,以达到政治目的、宗教目的或其他社会目的,受国际法和国内法禁止的犯罪行为。 第二部分,恐怖主义犯罪的客体要件。以各国国内反恐立法理论与实践为基础,分析了恐怖主义犯罪的客体。认为恐怖主义犯罪行为表现形式与普通的刑事往往重叠,它是由多个具体犯罪构成的,因此恐怖主义犯罪的侵害客体应是一个复杂客体。同时,总结了恐怖主义犯罪的侵害对象的特点和反恐立法规定的各类恐怖主义犯罪侵害对象。 第三部分,恐怖主义犯罪的客观方面要件。首先,以国际反恐公约、区域性反恐公约以及各国反恐法为基础,归纳总结了恐怖主义犯罪行为的不同类别。其次,分析了恐怖主义犯罪的危害结果,包括人员伤亡、财产损失和社会恐怖三个实际损害。认为恐怖主义活动的危害结果最为显著的特点是造成或可能造成严重的社会恐怖,是成立恐怖主义犯罪必备的结果要件。最后,分析了恐怖主义犯罪手段和实施时间、地点的特点。 第四部分,恐怖主义犯罪的主体要件。对个人、组织、单位、国家成为恐怖主义犯罪的主体的原因进行了分析。比较分析了一般犯罪组织、邪教组织、黑社会性质组织与恐怖组织的关系,以及恐怖组织与民族解放运动、武装部队的区别。 第五部分,恐怖主义犯罪的主观方面要件。主要研究了两个问题:第一,比较分析了反恐公约和各国国内反恐立法,指出恐怖主义犯罪的主观方面是故意,主要是直接故意,但也不排除间接故意。第二,研究分析了恐怖主义犯罪的动机与目的。 结论部分。通过对恐怖主义犯罪概念的界定和恐怖主义犯罪四个犯罪要件的分析,结合我国的反恐形势和立法现状,提出了若干立法建议。
[Abstract]:At present, terrorism crime is emerging in an endless stream around the world. After the 9 / 11 event in the United States in 2001, many countries are facing a serious threat of terrorist crimes. Our country is also suffering from the same deep harm. Since 1990s, the terrorist forces of "East Turkistan" have constantly made violent terrorist activities, which have seriously affected the stability of the border areas in the west of China and Xinjiang. The life and property of the people of the ethnic group are safe. The crime of terrorism is no longer a purely domestic terrorism crime or a crime of international terrorism. It needs the international community to cooperate fully to prevent and punish it. But the crime of terrorism is a very complicated crime phenomenon, because the countries of the world are poor in political, economic and cultural aspects. Differences in understanding of terrorist crimes vary greatly based on different positions and interests.
It is of great theoretical and practical significance to study the constitutive requirements of the crime of terrorism, especially the theoretical system of the constitutive elements of the crime in our country. In order to better understand and understand the crime of terrorism, like the common criminal crime, we can analyze the constitutive requirements of the terrorism crime in theory. On the basis of the theory of the constitution of law crime, the four elements of terrorism crime are analyzed in depth by comparative study and empirical analysis, and the suggestions for legislative perfection are put forward.
The first part is the definition of the concept of terrorism crime. It compares and analyzes the international counter-terrorism convention, the regional counter-terrorism Convention and the definition of the relevant concepts of the domestic counter-terrorism law, and points out the basic characteristics of the terrorism crime. It is considered that the crime of terrorism refers to any individual, organization or state, which is threatened by violence or violence, and is the cause of the destruction of innocent people and the creation of social terror. Criminal acts prohibited by international law or domestic law for political purposes, religious purposes or other social purposes.
The second part, the object of terrorism crime, based on the theory and practice of domestic counter-terrorism legislation, analyzes the object of terrorism crime. It thinks that the form of terrorism crime is overlapped with ordinary criminal, it is made up of several specific crimes, so the object of the terrorist crime should be one. At the same time, it summarizes the characteristics of the targets of terrorist crimes and the targets of various terrorist crimes stipulated by anti-terrorism legislation.
The third part, the objective elements of terrorism crime. First, based on the international counter-terrorism convention, regional counter-terrorism conventions and various countries' counter-terrorism law, the different categories of terrorist crimes are summed up. Secondly, the damage results of terrorist crimes are analyzed, including three actual conditions, including casualties, property losses and social terror. It is considered that the most significant characteristic of the consequences of terrorist activities is that it causes or may cause serious social terror, which is a necessary result of the establishment of terrorist crimes. Finally, the characteristics of the means of terrorism and the time and location of the crime are analyzed.
The fourth part, the main elements of the terrorism crime. The reasons for the individual, organization, unit and state to become the main body of the terrorism crime are analyzed. The general criminal organization, the cult organization, the relationship between the black society and the terrorist organization, and the difference between the terrorist organization and the national liberation movement and the armed forces are analyzed.
The fifth part, the subjective elements of terrorism crime, mainly studied two problems: first, compared and analyzed the anti-terrorism Convention and the domestic counter-terrorism legislation, and pointed out that the subjective aspects of the terrorism crime are intentional, mainly direct intentional, but also do not exclude indirect intention. Second, research and analysis of the motives and objectives of terrorist crimes. Yes.
In conclusion, through the definition of the concept of terrorism crime and the analysis of the four elements of terrorism crime, some legislative proposals are put forward in combination with the situation of counter-terrorism and the status of legislation in China.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.9
本文编号：2174297
[Abstract]:At present, terrorism crime is emerging in an endless stream around the world. After the 9 / 11 event in the United States in 2001, many countries are facing a serious threat of terrorist crimes. Our country is also suffering from the same deep harm. Since 1990s, the terrorist forces of "East Turkistan" have constantly made violent terrorist activities, which have seriously affected the stability of the border areas in the west of China and Xinjiang. The life and property of the people of the ethnic group are safe. The crime of terrorism is no longer a purely domestic terrorism crime or a crime of international terrorism. It needs the international community to cooperate fully to prevent and punish it. But the crime of terrorism is a very complicated crime phenomenon, because the countries of the world are poor in political, economic and cultural aspects. Differences in understanding of terrorist crimes vary greatly based on different positions and interests.
It is of great theoretical and practical significance to study the constitutive requirements of the crime of terrorism, especially the theoretical system of the constitutive elements of the crime in our country. In order to better understand and understand the crime of terrorism, like the common criminal crime, we can analyze the constitutive requirements of the terrorism crime in theory. On the basis of the theory of the constitution of law crime, the four elements of terrorism crime are analyzed in depth by comparative study and empirical analysis, and the suggestions for legislative perfection are put forward.
The first part is the definition of the concept of terrorism crime. It compares and analyzes the international counter-terrorism convention, the regional counter-terrorism Convention and the definition of the relevant concepts of the domestic counter-terrorism law, and points out the basic characteristics of the terrorism crime. It is considered that the crime of terrorism refers to any individual, organization or state, which is threatened by violence or violence, and is the cause of the destruction of innocent people and the creation of social terror. Criminal acts prohibited by international law or domestic law for political purposes, religious purposes or other social purposes.
The second part, the object of terrorism crime, based on the theory and practice of domestic counter-terrorism legislation, analyzes the object of terrorism crime. It thinks that the form of terrorism crime is overlapped with ordinary criminal, it is made up of several specific crimes, so the object of the terrorist crime should be one. At the same time, it summarizes the characteristics of the targets of terrorist crimes and the targets of various terrorist crimes stipulated by anti-terrorism legislation.
The third part, the objective elements of terrorism crime. First, based on the international counter-terrorism convention, regional counter-terrorism conventions and various countries' counter-terrorism law, the different categories of terrorist crimes are summed up. Secondly, the damage results of terrorist crimes are analyzed, including three actual conditions, including casualties, property losses and social terror. It is considered that the most significant characteristic of the consequences of terrorist activities is that it causes or may cause serious social terror, which is a necessary result of the establishment of terrorist crimes. Finally, the characteristics of the means of terrorism and the time and location of the crime are analyzed.
The fourth part, the main elements of the terrorism crime. The reasons for the individual, organization, unit and state to become the main body of the terrorism crime are analyzed. The general criminal organization, the cult organization, the relationship between the black society and the terrorist organization, and the difference between the terrorist organization and the national liberation movement and the armed forces are analyzed.
The fifth part, the subjective elements of terrorism crime, mainly studied two problems: first, compared and analyzed the anti-terrorism Convention and the domestic counter-terrorism legislation, and pointed out that the subjective aspects of the terrorism crime are intentional, mainly direct intentional, but also do not exclude indirect intention. Second, research and analysis of the motives and objectives of terrorist crimes. Yes.
In conclusion, through the definition of the concept of terrorism crime and the analysis of the four elements of terrorism crime, some legislative proposals are put forward in combination with the situation of counter-terrorism and the status of legislation in China.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997.9
【引证文献】
相关硕士学位论文 前1条
1 覃婕;我国恐怖主义犯罪研究[D];广西民族大学;2012年
，本文编号：2174297
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