我国刑法中犯罪未遂之立法完善

发布时间：2018-08-18 10:09

【摘要】：犯罪未遂,是故意犯罪中的一种特殊行为状态,其和犯罪预备、犯罪中止、犯罪既遂共同构成了故意犯罪的四种形态。刑法学界普遍认为,犯罪未遂概念最早是由中世纪的意大利法学家提出的。犯罪未遂制度的立法规定在国内外刑法中占据着重要地位,也是各国刑法中不可缺少的组成部分,但是我国刑法中关于犯罪未遂的立法规定存在着概念模糊不清、范围界定不明等多处漏洞。为切实深入分析研究我国犯罪未遂立法状况,该论文将我国的犯罪未遂制度纳入域外理论学说中进行比较分析,研究其背后的基本原理和基本价值,并通过分析我国犯罪未遂立法缺陷的深层次原因,尝试重新构建我国犯罪未遂立法规定,提出更加适应我国现实国情的观点和建议,以期我国刑事立法中关于犯罪未遂制度的规定得到进一步的修改完善。全文共计约35000字,一共分成五个部分:第一部分是关于犯罪未遂的历史演进,拟通过阐述分析犯罪未遂制度在不同历史时期的产生发展状况,厘清其背后所体现的刑法立场和立法精神的变化发展过程。第二部分是关于犯罪未遂处罚依据的理论之争。旨在通过介绍比较国内外关于犯罪未遂的理论处罚依据,提出我国刑法理论关于犯罪未遂方面应坚持客观主义未遂论。域外犯罪未遂外罚依据学说主要有三种:客观主义未遂论、主观主义未遂论、折中主义未遂论。而我国关于犯罪未遂处罚依据学说实质上仍属于“犯罪构成要件说”,通过犯罪构成要件理论来论证犯罪未遂应受处罚的合理性。对域外域内理论学说进行比较分析后,可以得出,我国关于犯罪未遂处罚依据的理论过于守旧,应采用客观主义学说,即通过是否侵害了刑法所保护的社会法益来判断犯罪未遂的构成与否,并将不具有任何危险性的不能犯行为排除在犯罪之外,以合理的界定犯罪未遂的处罚范围,限制国家公权力,保障公民私权利。第三部分是我国犯罪未遂立法的缺陷。一是外在表述的缺陷:对犯罪未遂概念的表述模糊不清,对犯罪未遂行为的阐述过于简单;二是内在逻辑的缺陷:一是不利于明确合理区分未遂犯与不能犯;二是违背刑法法益原理;三是容易导致纯粹的主观归罪。第四部分是我国犯罪未遂立法缺陷的成因剖析。我国犯罪未遂立法缺陷的成因主要表现为三个方面:一是主观主义刑法立场之保守;二是“四要件说”犯罪构成体系之因循;三是刑法保护功能之守旧。第五部分是我国犯罪未遂立法之完善。旨在通过前四部分的分析,对我国目前刑法中关于犯罪未遂之规定提出修改完善的建议。建议包括三个方面:一是对未遂犯规定采用刑法条文总分结合的模式;二是修正刑法第二十三条以区分未遂犯与不能犯;三是增加迷信犯不为罪的明文规定。
[Abstract]:Attempted crime is a special behavior state in intentional crime, which, together with crime preparation, crime suspension and crime accomplishment, constitutes four forms of intentional crime. It is generally believed in criminal law that the concept of attempted crime was first put forward by the Italian jurists in the Middle Ages. The legislative provisions of the attempted crime system occupy an important position in the criminal law at home and abroad, and it is also an indispensable part of the criminal law of various countries. However, there is a vague concept in the legislative provisions of the criminal law concerning attempted crime in our country. The scope of the definition of unknown and so on many loopholes. In order to analyze and study the legislation of attempted crime in our country, this paper makes a comparative analysis of the system of attempted crime in our country into the theory of foreign countries, and studies the basic principle and value behind it. By analyzing the deep reasons of the legislative defects of attempted crime in our country, the author tries to reconstruct the legislative provisions of attempted crime in our country, and puts forward some viewpoints and suggestions which are more suitable for the actual situation of our country. With a view to our criminal legislation on the system of attempted crime to be further modified and perfected. The paper consists of about 35000 words, which is divided into five parts: the first part is about the historical evolution of attempted crime, which is intended to analyze the emergence and development of attempted crime system in different historical periods. Clarify its behind the position of criminal law and legislative spirit of the change and development process. The second part is about the theory dispute about the criminal attempt punishment basis. Through introducing and comparing the theoretical punishment basis of attempted crime at home and abroad, the author points out that the theory of criminal law in our country should adhere to the theory of objectivist attempt. There are mainly three kinds of theories on the external penalty of attempted crime: attempt of objectivism, attempt of subjectivism and attempt of eclecticism. However, the theory of criminal attempted punishment in our country still belongs to the theory of constitutive elements of crime in essence, which proves the rationality of the punishment of attempted crime through the theory of constitutive elements of crime. After a comparative analysis of the theories in the foreign domain, it can be concluded that the theory of criminal attempted punishment in our country is too conservative and should adopt the theory of objectivism. That is, whether or not the criminal law infringes on the social legal interests protected by the criminal law to judge the constitution of the attempted crime, and to exclude the non-criminal behavior which is not dangerous from the crime, so as to reasonably define the scope of punishment for the attempted crime. Limit the public power of the state and protect the private rights of citizens. The third part is the defect of the legislation of attempted crime in our country. The first one is the defect of external expression: the expression of the concept of attempted crime is vague, the description of attempted crime is too simple, the second is the defect of internal logic: the first is not conducive to the clear and reasonable distinction between attempted crime and impossibility; The second is to violate the principle of legal interests of criminal law, and the third is to lead to pure subjective imputation. The fourth part is the analysis of the causes of the legislative defects of attempted crime in China. The causes of the legislative defects of attempted crime in our country are mainly manifested in three aspects: first, the conservative stance of subjectivism in criminal law; second, the basis of the criminal constitution system of "four elements theory"; third, the conservatism of the function of criminal law protection. The fifth part is the perfection of the legislation of attempted crime in our country. Through the analysis of the first four parts, the author puts forward some suggestions on the revision and perfection of the provisions of the criminal law of our country. The suggestions include three aspects: one is to adopt the model of combining the provisions of the criminal law with the total score of the provisions of the criminal law; the other is to amend Article 23 of the Criminal Law in order to distinguish the unaccomplished crime from the non-criminal; third, to increase the explicit provisions on superstitious crime not to be considered as a crime.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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