既遂或中止：主动排除危险状态行为性质研究
发布时间：2018-07-23 17:19
【摘要】：当危险状态出现之后实害结果发生前,行为人主动排除危险状态行为性质如何认定?按照我国目前的刑法理论通说认为：危险犯是指行为人实施的危害行为造成法律规定的发生某种社会危害结果的危险状态作为既遂标志的犯罪,按照通说很容易得出该种行为应该认定为犯罪既遂。然而,近年来,对犯罪既遂说的质疑越来越强烈,许多刑法学者从危险犯概念、既遂标准、犯罪形态、刑事政策等角度入手,提出了许多新颖的观点试图取代犯罪既遂说的通说地位,包括：犯罪中止说、实害犯中止说、准中止犯说、脱离自力控制说等。 多年来,刑法学者们各执一词,争论不断,但是至今危险犯中主动排除危险状态的行为究竟应该如何定性的问题一直没有得到解决。本文首先从郭某破坏交通设施案入手,引出主动排除危险状态的行为是既遂还是中止的争议。其次,对中止说对既遂说的批判进行了梳理,然后既遂说对中止说的批评进行了反驳。除了中止说之外,还存在既遂与中止的中间路线,本文对中间路线进行了概述和评析。再次,论证了犯罪既遂说的理论优势,犯罪既遂说符合危险犯的立法初衷、契合我国危险犯理论和故意犯罪停止形态的理论,法定危险状态出现是危险犯既遂的标准,此时已经具备犯罪既遂的所有构成要件,认定为犯罪既遂毋庸置疑,其通说地位无可取代。但是犯罪既遂说也有缺陷,其缺陷表现在在危险犯立法之初忽略了行为人的主观意志,导致主动排除状态的行为量刑偏重,不利于鼓励行为入主动悔过。这也正是犯罪既遂说饱受诟病的主要原因,学者们提出的各种中止说无非也是想方设法的减轻行为人的处罚,为成立犯罪中止寻找各种理由和借口。 但是,我国目前的刑法理论体系已经建立,危险犯理论是我国刑法理论体系的重要组成部分,试图对危险犯概念、犯罪形态理论进行重构,受牵连的不仅是危险犯,还有结果犯、行为犯和举动犯,对我国刑法理论来说无疑是一次大灾难,可谓牵一发而动全身。因此,要解决主动排除危险状态行为定性问题,在坚持通说的基础上弥补通说的缺陷是最明智的选择,也是解决这一问题的最佳方案。主动排除危险状态的行为是犯罪既遂,但是为了弥补犯罪既遂说的缺陷,考虑到危险犯的特殊情况,应当设置特殊的立法条文对主动排除危险的行为予以减轻处罚,符合缓刑适用条件的应当适用缓刑,以解决量刑过重的问题。犯罪既遂后主动悔罪,刑法规定减轻或免除处罚的国内外均有前例可供借鉴。我国有行贿后追溯前主动交代行贿行为可以减轻或免除处罚的法律规定,德国在对危险犯的立法中,规定了主动排除危险的悔罪情节,可以减轻或免除处罚。由此可提出立法建议,我国可借鉴德国的立法,在我国危险犯的立法中,专门为危险犯设立一款特殊条文,但是不应当免除处罚,只应根据案件的具体情况减轻处罚,因为危险犯毕竟是危害公共安全的重大犯罪,本着对公民的生命财产安全负责任的态度,危险犯应该与普通犯罪有所区别,其刑罚要比普通犯罪的刑罚要重一些,而且该种行为是犯罪既遂,不是犯罪中止,不能因为最终没有造成严重后果就免除处罚。综上所述,建议在危险犯立法上增加一款主动悔罪条款,即：行为人主动排除危险状态的,应当减轻处罚。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D914
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