多次侵犯同种人身权利犯罪研究

发布时间：2018-02-26 04:18

本文关键词： 侵犯人身权利多次同种数罪并罚　出处：《安徽大学》2014年硕士论文　论文类型：学位论文

【摘要】：多次实施同种侵犯人身权利的行为是指,行为人基于数个相同的犯罪故意,实施数个侵犯人身权利行为,数个行为的性质相同,触犯了相同罪名的犯罪行为。在通常情况下,如果行为人的数次侵犯同种人身权利行为之间没有关联性,侵犯对象也不是同一人,自然成立同种数罪。但在特殊情况下,数次行为之间可能存在各种竞合关系,或者侵犯对象为同一人,此时是否成立同种数罪,学界对此认识不一。本文认为,在此种情形下仍然成立同种数罪。罪数和罪名数是两个不同的概念,多次侵犯他人人身权利犯罪,只要行为人主观上具有多次相同的侵犯他人人身权利的犯罪故意,客观上多次实施了性质相同的犯罪行为,符合多个相同的侵犯人身权利的基本犯罪构成,触犯了多个相同的侵犯人身权利犯罪罪名,在原理上就已经构成了同种数罪。此外,有学者主张对于行为人一次行为侵犯了多人的同种人身权利也应视为同种数罪,本文认为这种仅将侵犯法益的数量作为标准来加以定性,违背了主客观相一致的原则,由于行为人只有一个行为,仍应视为一个犯罪,而不是同种数罪。依据我国刑法通说,对异种数罪应当实行数罪并罚,但是对同种数罪应当以一罪处断还是应数罪并罚,刑法学界对此一直没有统一的认识。众所周知,在三种情况下有可能要进行数罪并罚：一是判决宣告前一人犯数罪的并罚；二是判决宣告后,刑罚执行完毕前,发现有漏罪的并罚；三是判决宣告以后,刑罚执行完毕之前,被判刑的犯罪分子又犯新罪的并罚。①对第二种和第三种情况,判决已经宣告且没有任何不当,只能通过并罚解决问题。在第一种情况下,对判决宣告前一人多次侵犯他人同种人身权利犯罪,我国刑法学界主要有一罚说、并罚说和折衷说三种观点,一罚说主张一律以一罪论处,并罚说主张一律数罪并罚,折衷说主张区别情况分别对待。笔者认为,人身权利是个人专属法益,刑法应当加以特殊保护,在侵犯人身权利中不能轻易承认连续犯的成立,同时一罪一刑、行为责任论和公正量刑的基本原则,也决定了对多次侵犯他人同种人身权利犯罪,应当以在数罪并罚为原则,在例外情况下根据不同情节及法律和相关司法解释的规定确定罪数和处罚原则,虽然实践中不并罚的情况较多,但也只能说明例外情况较多,量的大小不能影响到原则的成立。但是,仅仅确定处断的原则是远远不够的,对原则的诸多例外情况,有必要加以分析、归纳和列举,提出在不同情况下的处断方法,以便在实践中规范司法行为。对判决宣告以前行为人实施数个侵犯他人同种人身权利,应当进行并罚的情形。主要有：一是当侵犯人身权利犯罪只有一个幅度的法定刑,且最高法定刑较低时；二是侵犯人身权利犯罪虽有两个以上幅度的法定刑,但不能因多次行为而提高法定刑时；三是数次同种侵犯人身权利犯罪的相隔时间较长；四是当多次侵犯同种人身权利,其中一次行为或数次行为存在想象竞合时；五是当多次侵犯同种人身权利,其中一次行为或数次行为存在牵连关系时。对判决宣告以前行为人实施数个侵犯他人同种人身权利,应当以一罪论处的情形。主要有：一是行为人连续侵犯同一人的同种人身权利的；二是刑法分则条文中明确将多次行为作为法定刑升格情节的；三是多次行为可视为“情节严重”或“情节特别严重”的；四是对多次实施侵犯人身权利行为规定的最高刑较重的；五是多次行为作为成立犯罪的构成要件的。
[Abstract]:The same repeated violations of personal rights behavior refers to the behavior of people, based on the number of the same criminal intent, the implementation of a number of violations of human rights, a number of acts of the same nature, violated the same criminal act charges. In general, if there is no connection between the personal rights of the behavior of several invasion make the same person, violation of the object is not the same person, the natural set up same crimes. But in special cases, there may be a variety of several competing relationship between the acts, or violation of the object is the same person, at this time whether the same number of crimes, scholars do not know. This paper argues that, in this case is still valid the same number of crime. Crime and crime number are two different concepts, many infringement of personal rights crime, as long as the actor has repeated the same infringement of personal rights of criminal intent, objectively implemented many times The nature of the same crime, with the same violation of personal rights violated the basic constitution of crime, the same violations of human rights crimes, in principle has been constituted the same number of crimes. In addition, some scholars advocate for the behavior of a violation of the people of the same person right should be regarded as the same number of crimes, this paper argues that this number will only violate the law benefits as the standard to be qualitative, contrary to the principle of subjective and objective consistent, because only one person, still should be regarded as a crime, but not the same number of crimes.
According to China's criminal law, the several dissimilar crimes shall be subject to punishment, but for the same number of crimes should be a crime or punishment, criminal law scholars have no unified understanding. As everyone knows, in the three case could lead to punishment before the judgment is pronounced: one is a person who commits several crimes of punishment two; after the judgment, the punishment has been completely executed before, found that leakage crime combined punishment; three is the judgment is pronounced later, before the completion of the penalty, the criminals convicted of having committed a crime. The punishment of second and third cases, the judgment has been declared without any improper, can only solve the problem of the punishment in the first case, right before the judgment is pronounced, many times a person infringes upon the same personal rights crime, the criminal law circles of our country have a penalty, punishment and compromise that three views, a penalty advocate a crime are to say Both claims are punished, punishment, eclecticism claims differences in the respective treatment. The author believes that human rights is personal law, criminal law should be of special protection, not easily recognized continuous offence in violation of personal rights, at the same time a crime a punishment, the basic principles of the act of responsibility and justice of sentencing. Has also decided to infringe the rights of the person with multiple crimes, which should be based on the principle of the punishment, in exceptional circumstances of crime and punishment principle is determined according to the provisions of different circumstances and the law and the relevant judicial interpretations, although the practice is not appropriate in many cases, but it can also explain the more exceptions, the size does not affect the principle was established. However, only certain breaking principle is not enough, many exceptions to the principle, it is necessary to analyze, summarize and list, put in different situations In order to regulate the judicial act in practice.
The announcement before the behavior of the implementation of a number of infringement of personal rights should be the same, for punishment. Mainly: one is the infringement of personal rights when the crime is only a range of legal punishment, the legal punishment and the highest is low; two is a violation of human rights crimes although there are more than two of the statutory range the punishment, but not because of repeated acts and improve the legal punishment; three is separated by several times the same violations of human rights crimes long time; four is the same as many violations of personal rights, including one or several behaviors of imaginative joinder of actions; five is the same as many violations of personal rights, including one act or several behavior is implicated.
The announcement before the behavior of the implementation of a number of infringement of personal rights should be the same, one crime situation. Mainly has: one is the behavior of the same person in the same continuous violation of personal rights; two is in specific provisions of criminal law clearly repeated acts as the legal punishment upgraded circumstances; three times the behavior can be regarded as "serious" or "if the circumstances are especially serious"; the four is the highest punishment for repeated violations of Human Rights Act five is heavy; repeated acts as the establishment of the constitutive requirements of crime.

【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D924.1

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