聚众斗殴罪司法认定疑难问题研究
发布时间：2018-10-10 15:50
【摘要】：聚众斗殴罪被规定在《中华人民共和国刑法》第二百九十二条,并且仅作了十分简单的规定,而关于此罪的客观构成要件应该如何认定,并无具体描述,张明楷教授将其定义为聚集多人攻击对方身体或者相互攻击对方身体的行为;同时由于缺乏相关司法解释,各地颁布的有关此罪的《纪要》及其他规范性意见也不充分全面,因此,学界关于此罪的基本犯罪构成认定、行为构造、加重情节司法认定及致人重伤死亡这一转化条款认定等问题一直都有许多不同见解,同时,在司法实践中此罪也是较为疑难的问题。有鉴于此,笔者阐述了当前较具代表意义的学者的相关意见和具体实践中司法机关的观点,同时对这些意见观点作了深入分析,提出了自己对这些问题的看法,以期为解决这些难题尽一份绵薄之力。文章分为四个部分:第一个部分是聚众斗殴罪基本犯罪构成客观行为的认定。在这个问题之下,笔者详细分析了 "聚众"和"斗殴"两个客观行为的内涵,笔者看来"众"意为单方人数为三人及以上,同意用单方人数作为标准,而"聚众"意为首要分子经过策划以后,为实现斗殴目的而集聚3人以上的活动。在"斗殴"的理解上,笔者分析了"斗殴无防卫"的内涵,以及"斗殴地点有无限制"这两个问题。第二个部分是聚众斗殴罪行为构造问题。对于这个问题,学界大致存在如下不同意见:第一,复合行为说;第二,单一行为说。笔者赞同单行为说,认为本罪的实行行为只有"斗殴","聚众"并不是,并详细地阐述了理由。第三个部分是聚众斗殴罪加重情节司法认定问题。我国《刑法》明确了关于此罪的四种加重情节,笔者对这四种情形进行了分析,如"多次聚众斗殴"中的"多次"应该如何认定;何为"人数多"、"规模大"及"社会影响恶劣",这三个条件在认定过程中所起的作用是否相同;何为"械",何为"持械",如果在斗殴过程中只有一方持械,应怎样认定,如果仅一方中部分人持械,此时又应怎样认定,笔者都进行了详细的阐述,并提出了自己的看法。第四个部分是聚众斗殴致人重伤、死亡的认定研究。我国《刑法》第二百九十二条规定了聚众斗殴罪的转化条款。在第四部分,笔者先阐述了自己对此转化条款的基本看法,笔者认为,成立转化犯的前提是行为已经成立聚众斗殴罪,未具备这个前提便不会进行转化。以此为基础,笔者对转化主体的范围作出了界定,笔者看来,全案转化说和部分转化说不可取,并阐述了理由。此外,还分析了"致人重伤、死亡"中"人"的具体界限,在笔者看来,对方因受击打而受重伤或死亡的人应当在"人"的界限之内,但实践中的一些特殊情形需作出区分再处理,并作出了分析。
[Abstract]:The crime of affray is stipulated in Article 292 of the Criminal Law of the people's Republic of China, and it is only stipulated in a very simple way. However, there is no specific description as to how the objective elements of the crime should be identified. Professor Zhang Mingkai defined it as the act of gathering a number of people to attack each other's body or attacking each other's body. At the same time, due to the lack of relevant judicial explanations, the minutes and other normative opinions issued by various localities on this crime are also not sufficiently comprehensive. Therefore, there are many different opinions about the basic crime constitution, the behavior structure, the judicial cognizance of aggravating circumstances and the confirmation of the transforming clause of causing serious injury and death in the academic circles, and at the same time, In judicial practice, this crime is also a more difficult problem. In view of this, the author expounds the relevant opinions of the scholars with representative significance at present and the views of the judicial organs in concrete practice, and at the same time makes an in-depth analysis of these views, and puts forward his own views on these issues. In order to solve these problems to make a modest contribution. The article is divided into four parts: the first part is the identification of the basic crime of affray as an objective act. Under this problem, the author analyzes the connotation of "gathering crowd" and "brawl" in detail. It seems to me that "crowd" means that the number of one party is three or more, and agrees to use the number of unilateral parties as the standard. The "crowd" means that the ringleader, after planning, to achieve the purpose of the fight and gather more than 3 activities. On the understanding of "brawl", the author analyzes the connotation of "affray without defense" and the question of whether the place of brawl is restricted or not. The second part is the behavior structure of the crime of affray. There are different opinions about this problem: first, the theory of compound behavior; second, the theory of single behavior. The author agrees with the theory of "single act", and thinks that the crime is only "affray", "gathering the crowd" is not, and expounds the reason in detail. The third part is the problem of judicial cognizance of aggravation of affray crime. The Criminal Law of our country clarifies the four aggravating circumstances of this crime, and the author analyzes the four situations, such as how to identify the "multiple times" in "multiple fights"; What are "large numbers", "large scale" and "bad social impact"? are these three conditions playing the same role in the determination process; what is "armed" and what is "armed"; if only one party is armed in the course of a fight, how should it be determined? If only some of them are armed, how should they be determined at this time, I have elaborated in detail and put forward my own views. The fourth part is the research on the identification of serious injury and death caused by affray. Article 292 of our country's Criminal Law stipulates the transforming clause of the crime of affray. In the fourth part, the author first expounds his basic views on the transformation clause. The author thinks that the premise of establishing the transforming crime is that the behavior has already established the crime of affray among the masses, and if it does not have this premise, it will not be transformed. On the basis of this, the author defines the scope of the subject of transformation. The author thinks that the theory of whole case transformation and the theory of partial transformation are not desirable, and expounds the reasons. In addition, the author also analyzes the specific boundaries of "person" in "causing serious injury and death". In the author's opinion, the person who was seriously injured or died as a result of being hit by the other side should fall within the boundary of "person". However, some special cases in practice need to be differentiated and reprocessed and analyzed.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2262365
[Abstract]:The crime of affray is stipulated in Article 292 of the Criminal Law of the people's Republic of China, and it is only stipulated in a very simple way. However, there is no specific description as to how the objective elements of the crime should be identified. Professor Zhang Mingkai defined it as the act of gathering a number of people to attack each other's body or attacking each other's body. At the same time, due to the lack of relevant judicial explanations, the minutes and other normative opinions issued by various localities on this crime are also not sufficiently comprehensive. Therefore, there are many different opinions about the basic crime constitution, the behavior structure, the judicial cognizance of aggravating circumstances and the confirmation of the transforming clause of causing serious injury and death in the academic circles, and at the same time, In judicial practice, this crime is also a more difficult problem. In view of this, the author expounds the relevant opinions of the scholars with representative significance at present and the views of the judicial organs in concrete practice, and at the same time makes an in-depth analysis of these views, and puts forward his own views on these issues. In order to solve these problems to make a modest contribution. The article is divided into four parts: the first part is the identification of the basic crime of affray as an objective act. Under this problem, the author analyzes the connotation of "gathering crowd" and "brawl" in detail. It seems to me that "crowd" means that the number of one party is three or more, and agrees to use the number of unilateral parties as the standard. The "crowd" means that the ringleader, after planning, to achieve the purpose of the fight and gather more than 3 activities. On the understanding of "brawl", the author analyzes the connotation of "affray without defense" and the question of whether the place of brawl is restricted or not. The second part is the behavior structure of the crime of affray. There are different opinions about this problem: first, the theory of compound behavior; second, the theory of single behavior. The author agrees with the theory of "single act", and thinks that the crime is only "affray", "gathering the crowd" is not, and expounds the reason in detail. The third part is the problem of judicial cognizance of aggravation of affray crime. The Criminal Law of our country clarifies the four aggravating circumstances of this crime, and the author analyzes the four situations, such as how to identify the "multiple times" in "multiple fights"; What are "large numbers", "large scale" and "bad social impact"? are these three conditions playing the same role in the determination process; what is "armed" and what is "armed"; if only one party is armed in the course of a fight, how should it be determined? If only some of them are armed, how should they be determined at this time, I have elaborated in detail and put forward my own views. The fourth part is the research on the identification of serious injury and death caused by affray. Article 292 of our country's Criminal Law stipulates the transforming clause of the crime of affray. In the fourth part, the author first expounds his basic views on the transformation clause. The author thinks that the premise of establishing the transforming crime is that the behavior has already established the crime of affray among the masses, and if it does not have this premise, it will not be transformed. On the basis of this, the author defines the scope of the subject of transformation. The author thinks that the theory of whole case transformation and the theory of partial transformation are not desirable, and expounds the reasons. In addition, the author also analyzes the specific boundaries of "person" in "causing serious injury and death". In the author's opinion, the person who was seriously injured or died as a result of being hit by the other side should fall within the boundary of "person". However, some special cases in practice need to be differentiated and reprocessed and analyzed.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
【参考文献】
相关硕士学位论文 前5条
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2 周维;浅析聚众斗殴罪[D];西南政法大学;2012年
3 储盛楠;情节加重犯基本问题研究[D];南京大学;2011年
4 党涛;论聚众斗殴罪[D];西南政法大学;2010年
5 柯武松;论聚众斗殴罪[D];武汉大学;2004年
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