以危险方法危害公共安全罪的问题探析
发布时间：2018-10-25 11:30
【摘要】：以危险方法危害公共安全罪在司法适用中的扩大化问题引起了我国刑法学界的关注。从碰瓷、盗窃窨井盖再到醉酒驾车、瘦肉精案件，许多原本不该被解释进来的行为被纳入此罪进行评价。以危险方法危害公共安全罪的触角延伸到社会生活的方方面面，产生了大量同案不同判的案例，违背了罪刑法定原则。 笔者认为，要解决以危险方法危害公共安全罪适用范围扩张的现状，就要从我国现行刑法理论出发，结合司法实践，分析我国现行刑法关于该罪规定的模糊点并逐一理清，严格界定该罪的适用范围。 本文共分为三部分。第一部分介绍了以危险方法危害公共安全罪刑法规制的演变与立法背景，通过对79年刑法、97年刑法，以及刑法修正案、相关司法解释法条规定的梳理，对本罪适用范围有了初步认识，并为后文本罪适用范围扩张的原因分析做了铺垫；第二部分通过真实的社会热点案例以及同案不同判的司法案例对比，展现以危险方法危害公共安全罪适用范围不断扩张的现状，分析本罪适用范围扩张带来的弊端，从法条规定的模糊性和司法实务对本罪的曲解两方面阐述本罪沦为“口袋罪”的原因。第三部分通过对相关文献的搜索、比对，笔者对本罪相关争议焦点进行了梳理，以限制该罪本身模糊的要素，防止由于理论上的不明确导致实践中的扩大适用。基于罪刑法定原则和刑法相适应原则的要求，界定了本罪的客体——“公共安全”，并从内涵和认定两方面来分析“以其他危险方法”行为。最后通过对第一章第一节所列的同案不同判的行为进行辨析，，再次从实务角度对本罪的司法适用问题进行阐释。 我国目前的司法实践领域中，以危险方法危害公共安全罪被扩张适用的趋势日趋严重。因此，本文遵循罪刑法定原则的要求，从理论方面对该罪进行了较为系统地研究，从而对本罪适用范围进行了限制。希望拙文能够为理论研究提供一点启发，对司法有所裨益。
[Abstract]:The expansion of the crime of endangering public security by dangerous method in the judicial application has aroused the concern of the criminal law circle of our country. From porcelain, scenting covers to drunken driving, lean meatloin cases, many actions that should not have been explained were included in the crime to be evaluated. The tentacles of endangering public security crimes by dangerous methods extend to all aspects of social life, resulting in a large number of cases of different judgments in the same case, which violates the principle of legally prescribed punishment for a crime. The author believes that in order to solve the problem of expanding the scope of application of the crime of endangering public security by dangerous methods, we must proceed from the current criminal law theory of our country, combine with the judicial practice, analyze the fuzzy points of the criminal law concerning this crime in our current criminal law and clarify one by one. The scope of application of the crime is strictly defined. This paper is divided into three parts. The first part introduces the evolution and legislative background of criminal law regulation of crimes endangering public security by dangerous methods, and combs the provisions of 79 years criminal law, 1997 criminal law, and the amendment of criminal law, and the relevant provisions of judicial interpretation law. The author has a preliminary understanding of the scope of application of this crime, and makes a preliminary analysis of the reasons for the expansion of the scope of application of this crime in the following articles. The second part compares the judicial cases with different judgments in the same case through the real social hot spot cases. Showing the current situation that the scope of application of the crime of endangering public safety by dangerous methods is constantly expanding, and analyzing the disadvantages brought by the expansion of the scope of application of this crime, From the fuzziness of the stipulation of the law and the misinterpretation of the crime in judicial practice, the paper expounds the reasons why the crime has become "pocket crime". In the third part, by searching and comparing the relevant documents, the author combs the focus of this crime, in order to limit the fuzzy elements of the crime itself and prevent the expansion of the application in practice due to the lack of clarity in theory. Based on the requirement of the principle of legally prescribed punishment for a crime and the principle of adaptation of criminal law, this paper defines the object of the crime "public safety", and analyzes the "other dangerous methods" behavior from the aspects of connotation and cognizance. Finally, through the analysis of the behavior of different judgments of the same case listed in the first section of chapter one, the judicial application of this crime is explained again from the perspective of practice. In the field of judicial practice in our country, the crime of endangering public security by dangerous method is being expanded and applied more and more seriously. Therefore, in accordance with the principle of legally prescribed punishment for a crime, this paper makes a systematic study of the crime from the theoretical point of view, thus limiting the scope of application of the crime. I hope that this article can provide some inspiration for the theoretical research and benefit to the judiciary.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2293577
[Abstract]:The expansion of the crime of endangering public security by dangerous method in the judicial application has aroused the concern of the criminal law circle of our country. From porcelain, scenting covers to drunken driving, lean meatloin cases, many actions that should not have been explained were included in the crime to be evaluated. The tentacles of endangering public security crimes by dangerous methods extend to all aspects of social life, resulting in a large number of cases of different judgments in the same case, which violates the principle of legally prescribed punishment for a crime. The author believes that in order to solve the problem of expanding the scope of application of the crime of endangering public security by dangerous methods, we must proceed from the current criminal law theory of our country, combine with the judicial practice, analyze the fuzzy points of the criminal law concerning this crime in our current criminal law and clarify one by one. The scope of application of the crime is strictly defined. This paper is divided into three parts. The first part introduces the evolution and legislative background of criminal law regulation of crimes endangering public security by dangerous methods, and combs the provisions of 79 years criminal law, 1997 criminal law, and the amendment of criminal law, and the relevant provisions of judicial interpretation law. The author has a preliminary understanding of the scope of application of this crime, and makes a preliminary analysis of the reasons for the expansion of the scope of application of this crime in the following articles. The second part compares the judicial cases with different judgments in the same case through the real social hot spot cases. Showing the current situation that the scope of application of the crime of endangering public safety by dangerous methods is constantly expanding, and analyzing the disadvantages brought by the expansion of the scope of application of this crime, From the fuzziness of the stipulation of the law and the misinterpretation of the crime in judicial practice, the paper expounds the reasons why the crime has become "pocket crime". In the third part, by searching and comparing the relevant documents, the author combs the focus of this crime, in order to limit the fuzzy elements of the crime itself and prevent the expansion of the application in practice due to the lack of clarity in theory. Based on the requirement of the principle of legally prescribed punishment for a crime and the principle of adaptation of criminal law, this paper defines the object of the crime "public safety", and analyzes the "other dangerous methods" behavior from the aspects of connotation and cognizance. Finally, through the analysis of the behavior of different judgments of the same case listed in the first section of chapter one, the judicial application of this crime is explained again from the perspective of practice. In the field of judicial practice in our country, the crime of endangering public security by dangerous method is being expanded and applied more and more seriously. Therefore, in accordance with the principle of legally prescribed punishment for a crime, this paper makes a systematic study of the crime from the theoretical point of view, thus limiting the scope of application of the crime. I hope that this article can provide some inspiration for the theoretical research and benefit to the judiciary.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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