代替考试罪中止研究
发布时间：2018-11-03 21:50
【摘要】：犯罪中止理论一直为论者关注的焦点之一,是个罪犯罪构成中的行为要件。刑法分则中规定的行为要件的多样性决定了个罪中止的多样性。代替考试罪是我国刑法新增的罪名,是指假冒他人身份或者指使他人假冒自己在法定国家考试中进行不法作答行为。代替考试罪中止呈现为假冒身份行为中止、不法作答行为中止、不法作答后行为中止三种样态。身份真实是参加法定国家考试的必备条件。代替考试罪中的代替行为,是指假冒他人身份的行为或者指使他人假冒自己身份的行为。替考者于法定国家考试作答前,自动、彻底放弃方法行为之一的,成立代替考试罪假冒身份行为的中止,其效力不及于对合的另一方;合意中止的对合双方均为中止;被替考者有效阻止替考者假冒自己身份的,也可成立代替考试罪中止。替考犯罪意志以外的原因,使假冒身份行为停止的,成立代替考试罪未遂。作答过程是指法定国家考试的举办机构对报考者身份、回答所设问题的时间、场所、方式、顺序等程序的统称。刑法设立代替考试罪,其目的是规制法定国家考试报考者身份的真实性、作答行为的时空性、不法作答结果合法化。行为人开始不法作答即为代替考试罪的着手,至作答过程结束前,自动、彻底放弃不法作答行为,成立代替考试罪作答中止,被代替身份者不成立作答中止。被代替身份者有效阻止不法作答继续进行的,成立代替考试罪中止。替考犯罪意志以外的原因,使不法作答行为停止的,成立代替考试罪未遂。对代替考试罪犯罪过程的分析,应以法定国家考试过程为基础,本罪行为人的目的是追求不法作答结果合法化。刑法问责替考行为,归根结底是保护法定国家考试的“三真”,即身份真实、作答真实、作答结果真实。把不法作答后至考试成绩发布前,行为人自动有效防止不法作答结果合法化,认定为代替考试罪的积极中止,有助于打通为行为人放弃犯罪架设回归正常社会秩序的“黄金桥”的最后一公里,节约司法成本,区分该罪的不同停止形态,考量破坏考试秩序的社会危害程度,提高罪行评价的精确性,实现罪刑个别化。
[Abstract]:The theory of suspension of crime has always been one of the focuses of attention, and it is an important element of behavior in the constitution of crime. The diversity of the behavior elements stipulated in the sub-rule of criminal law determines the diversity of the suspension of a crime. The crime of replacing examination is a new crime in criminal law of our country. It refers to impersonating another person's identity or instructing others to impersonate oneself in the legal national examination. The discontinuance of the crime in lieu of examination is presented as the suspension of the act of impersonation and the suspension of the act after the illegal answer. Authentic identity is a prerequisite for taking a statutory national exam. The substitution behavior in the crime of replacing examination refers to the act of impersonating another person's identity or instructing others to impersonate oneself. If an examiner voluntarily and thoroughly gives up one of the methods before the legal national examination is answered, the suspension of the act of impersonation of identity in lieu of examination shall be less effective than that of the other party of the consort; both parties who agree to suspend the discontinuance shall be suspended; Those who are effectively prevented from impersonating themselves may also be suspended in lieu of examination. If the act of impersonation is stopped because of the will of the substitute for the crime of taking the examination, the crime of substitution for examination shall be established. The answering process refers to the general name of the procedure of the legal national examination organization to the applicant's identity, the time, the place, the way and the order of answering the questions. The purpose of establishing criminal law to replace examination crime is to regulate the authenticity of the identity of the legal national examiners, the space-time nature of the answering behavior, and the legalization of the illegal answer results. When the actor begins to answer illegally, it is the beginning of the crime of replacing the examination, and before the end of the process of answer, he automatically and thoroughly gives up the illegal act of answering, establishes the suspension of the answer in place of the crime of examination, and the person who is replaced by the status does not establish the suspension of the answer. If the person who has been replaced effectively prevents the illegal answer from continuing, the crime of replacing the examination shall be suspended. For reasons other than the will of the substitute for crime, the crime of substitution for examination shall be established if the illegal act of answer is stopped. The analysis of the criminal process of the crime of replacing examination should be based on the legal national examination process, and the purpose of the perpetrator of this crime is to legalize the result of illegal answer. In the final analysis, the criminal law is to protect the "three truthfulness" of the legal national examination, that is, the identity is true, and the answer result is true. The actor automatically and effectively prevents the legalization of the illegal answer result after the illegal answer is issued until the examination result is issued, and considers it to be a positive suspension of the crime of replacing the examination, It is helpful to clear up the last kilometer of "Golden Bridge" for the perpetrator to abandon the crime and return to normal social order, to save the judicial cost, to distinguish the different stop forms of the crime, and to consider the degree of social harm that destroys the examination order. Improve the accuracy of crime evaluation and realize the individualization of crime and punishment.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2309141
[Abstract]:The theory of suspension of crime has always been one of the focuses of attention, and it is an important element of behavior in the constitution of crime. The diversity of the behavior elements stipulated in the sub-rule of criminal law determines the diversity of the suspension of a crime. The crime of replacing examination is a new crime in criminal law of our country. It refers to impersonating another person's identity or instructing others to impersonate oneself in the legal national examination. The discontinuance of the crime in lieu of examination is presented as the suspension of the act of impersonation and the suspension of the act after the illegal answer. Authentic identity is a prerequisite for taking a statutory national exam. The substitution behavior in the crime of replacing examination refers to the act of impersonating another person's identity or instructing others to impersonate oneself. If an examiner voluntarily and thoroughly gives up one of the methods before the legal national examination is answered, the suspension of the act of impersonation of identity in lieu of examination shall be less effective than that of the other party of the consort; both parties who agree to suspend the discontinuance shall be suspended; Those who are effectively prevented from impersonating themselves may also be suspended in lieu of examination. If the act of impersonation is stopped because of the will of the substitute for the crime of taking the examination, the crime of substitution for examination shall be established. The answering process refers to the general name of the procedure of the legal national examination organization to the applicant's identity, the time, the place, the way and the order of answering the questions. The purpose of establishing criminal law to replace examination crime is to regulate the authenticity of the identity of the legal national examiners, the space-time nature of the answering behavior, and the legalization of the illegal answer results. When the actor begins to answer illegally, it is the beginning of the crime of replacing the examination, and before the end of the process of answer, he automatically and thoroughly gives up the illegal act of answering, establishes the suspension of the answer in place of the crime of examination, and the person who is replaced by the status does not establish the suspension of the answer. If the person who has been replaced effectively prevents the illegal answer from continuing, the crime of replacing the examination shall be suspended. For reasons other than the will of the substitute for crime, the crime of substitution for examination shall be established if the illegal act of answer is stopped. The analysis of the criminal process of the crime of replacing examination should be based on the legal national examination process, and the purpose of the perpetrator of this crime is to legalize the result of illegal answer. In the final analysis, the criminal law is to protect the "three truthfulness" of the legal national examination, that is, the identity is true, and the answer result is true. The actor automatically and effectively prevents the legalization of the illegal answer result after the illegal answer is issued until the examination result is issued, and considers it to be a positive suspension of the crime of replacing the examination, It is helpful to clear up the last kilometer of "Golden Bridge" for the perpetrator to abandon the crime and return to normal social order, to save the judicial cost, to distinguish the different stop forms of the crime, and to consider the degree of social harm that destroys the examination order. Improve the accuracy of crime evaluation and realize the individualization of crime and punishment.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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