论组织考试作弊罪

发布时间：2018-05-19 09:25

本文选题：组织 + 考试作弊　；参考：《吉林大学》2017年硕士论文

【摘要】：因社会诚信缺失,行政法规的执行力不从心,从《中华人民共和国刑法修正案(九)》草稿的公布、审议修改至正式生效,我国明确将组织考试作弊行为及相关帮助行为纳入刑法规制范围,并确定为组织考试作弊罪。组织考试作弊罪作为新罪名,其构成要件、既遂标准、罪间判断等问题尚需深入研究,以便为审判实践提供参考。组织考试作弊罪指在法律规定的国家考试中,组织作弊或者为他人实施组织作弊提供帮助且应受刑罚处罚的行为。组织考试作弊罪不仅侵犯了国家的考试制度,也侵犯了其他考生合法权益。考试作弊如插队行为,其行为所反映出的是社会资源在有限时空中不能满足所有考生需求的现象。这种行为涉及“人”和“物”的因素,“人”的因素主要包括应考考生、替考者、枪手、监考老师、组织谋划者等,“物”的因素包括作弊发送器、接收器、中转传播器、试题、答案、考场等。“组织”行为系组织者通过招募、引诱等手段将“人”和“物”的因素串联起来,提高考生的竞争力,为获取更高成绩提供便利条件从而更快捷地分配有限的社会资源。考试范围限于“法律规定”的“国家考试”,“国家考试”即在全国范围内具有重大意义的统一考试;“法律规定”仅限于全国人民代表大会及其常务委员会制定、通过的规范性文件,不包括行政法规、政府规章。组织考试作弊罪的既遂与未遂的判断标准可从“时间”和“空间”因素予以界定,即组织行为完成的时间因素和考场的空间因素。当组织考试作弊罪中组织者完成了招募、雇佣、策划等组织行为,便对国家考试制度产生了侵害或危险,成就了时间方面的必要条件;当组织考试作弊行为渗入封闭的考场,即将侵害其他考生的合法权益,成就了空间方面的必要条件。当组织考试作弊行为同时满足“时间”和“空间”因素时,组织考试作弊罪既遂。审判实践中,组织考试作弊罪具有以下特点:第一,组织考试作弊罪的刑罚幅度总在三年以下有期徒刑(不包括三年),组织考试作弊罪条文中“情节严重”条款只是备而不用。第二,《中华人民共和国刑法修正案(九)》施行后,大部分法院对涉嫌考试作弊犯罪以组织考试作弊罪定罪,但仍有部分法院以非法获取国家秘密罪定罪。第三,从刑事诉讼程序分析,组织考试作弊罪中具体强制措施的适用是适用缓刑的晴雨表。第四,在考试作弊类犯罪中,组织考试作弊罪同非法获取国家秘密罪区别不大,大凡能以组织考试作弊罪定罪的案件,也可以非法获取国家秘密罪定罪,但是以非法获取国家秘密罪定罪的案件未必能以组织考试作弊罪定罪。代替考试及非法使用窃听、窃照专用器材一般作为组织考试作弊罪中的手段方式,法院在定罪量刑时从一重处。
[Abstract]:Because of the lack of social integrity and the execution of administrative laws and regulations, from the publication of the draft of the amendment of the criminal law of People's Republic of China (nine) and the revision of the draft to the official entry into force, our country explicitly organizes the cheating and related help in the organization of the examination into the scope of the criminal law, and determines to organize the crime of cheating in the examination. In order to provide reference for the practice of trial, the crime of organizing examination cheating refers to the act of organizing cheating or providing help and punishable punishment for other people's cheating in the organization. The crime of organizing examination cheating is not only a violation of the state. The examination system also violates the legitimate rights and interests of other candidates. Cheating in the examination is such as the act of queue cutting. The behavior reflects the phenomenon that social resources can not meet the needs of all candidates in a limited time and space. This behavior involves the factors of "people" and "things", and the factors of "people" include examinees, examiners, gunmen, and invigilator teachers. The organizer and other factors include the cheating transmitter, the receiver, the transfer communicator, the test, the answer, the examination room, etc. the organizer organizes the "man" and "things" by means of recruiting, seducing, and so on, to improve the competitiveness of the examinees, and provide convenient conditions for obtaining higher achievements and thus more quick division. With limited social resources. The examination scope is limited to the "national examination" of "law". "National examination" is a national examination which is of great significance throughout the country; "legal provisions" are limited to the National People's Congress and its Standing Committee, which are formulated by the National People's Congress and its Standing Committee, and do not include administrative regulations, government rules and regulations. The standard of accomplishing and unaccomplished examination of cheating in examinations can be defined from the "time" and "space" factors, that is, the time factor and the space factor of the completion of the organizational behavior. When the organizer has completed the recruitment, employment, and planning, the organizer has made a violation or danger to the national examination system. As to the necessary conditions of time, when the organization of cheating in the examination infiltrates the closed examination room, it will infringe the legitimate rights and interests of other examinees, and make the necessary conditions for the space. When organizing the cheating in the examination to meet the "time" and "space" factors, the organization test cheating is accomplished. In the trial practice, organizing the cheating in the examination. The crime has the following characteristics: first, the punishment range of the crime of organizing examination cheating is under three years' imprisonment (not including three years). The clause of "serious plot" in the provisions of the crime of organizing examination cheating is only spare. Second, after the implementation of the amendment of the criminal law of People's Republic of China (nine), most courts have organized the crime of cheating in examination. The crime of cheating in examination is convicted, but there are still some courts to convict the crime of illegally obtaining state secrets. Third, from the analysis of criminal procedure, the application of specific compulsory measures in the crime of organizing examination cheating is a barometer for applying probation. Fourth, in cheating in exams, there is no difference between the crime of organizing the examination as a crime and the crime of obtaining the secret of the state illegally. The crime of organizing the crime of organizing examination cheating can also illegally obtain the conviction of the state secret crime, but the case which is convicted of the crime of illegally obtaining the state secret may not be convicted by the crime of organizing examination cheating. Instead of the examination and the illegal use of the eavesdropping, the special equipment of the theft is generally used as a means in the crime of cheating in the organization examination. The court is convicted. The penalty is in one place.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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