代替考试罪的司法认定研究
发布时间：2018-11-07 18:27
【摘要】：刑法学界及司法实务部门对于入罪后的代替考试行为应如何理解适用,存在较大争议。"法律规定"的"国家考试"中的"法律"应仅指全国人民代表大会及其常委会制定的规范性文件。代替考试罪的罪数问题较为复杂,涉及牵连犯、法规竞合犯、想象竞合犯、集合犯及数罪并罚等情形。在试卷上互写对方姓名、考号等信息的行为应认定为替考。虽然刑法条文没有罪量的规定,但并非只要实施替考行为就一定构成代替考试罪。替考要约是实施替考行为的前提条件,将替考要约行为认定为犯罪,存在刑法介入考试行为的早期化嫌疑。代替考试罪属于过程行为犯,只要替考者进入考场参加考试,就标志着犯罪的既遂。
[Abstract]:There is a great dispute in criminal law circles and judicial practice departments about how to understand and apply the behavior of substitute examination after conviction. " The "law" in the "National examination" stipulated by law shall refer only to the normative documents formulated by the National people's Congress and its standing Committee. The problem of the number of crimes in place of examination is more complicated, which involves implicated crime, law competition crime, imaginative joint crime, collective crime and combined punishment of several crimes and so on. The behavior of writing each other's name, number and other information on the examination paper should be regarded as a double test. Although the criminal law does not provide for the amount of crime, it does not necessarily constitute the crime of replacing the examination as long as the act of taking the test is carried out. The offer is the prerequisite for the implementation of the act. The offer is considered as a crime and there is an early suspicion of the criminal law intervention in the examination. The crime of replacing examination belongs to the crime of process behavior, as long as the examiner enters the examination room to take part in the examination, it marks the accomplishment of the crime.
【作者单位】： 沈阳师范大学法学院;
【基金】：国家社会科学基金项目(15BFX092)
【分类号】：D924.3
本文编号：2317218
[Abstract]:There is a great dispute in criminal law circles and judicial practice departments about how to understand and apply the behavior of substitute examination after conviction. " The "law" in the "National examination" stipulated by law shall refer only to the normative documents formulated by the National people's Congress and its standing Committee. The problem of the number of crimes in place of examination is more complicated, which involves implicated crime, law competition crime, imaginative joint crime, collective crime and combined punishment of several crimes and so on. The behavior of writing each other's name, number and other information on the examination paper should be regarded as a double test. Although the criminal law does not provide for the amount of crime, it does not necessarily constitute the crime of replacing the examination as long as the act of taking the test is carried out. The offer is the prerequisite for the implementation of the act. The offer is considered as a crime and there is an early suspicion of the criminal law intervention in the examination. The crime of replacing examination belongs to the crime of process behavior, as long as the examiner enters the examination room to take part in the examination, it marks the accomplishment of the crime.
【作者单位】： 沈阳师范大学法学院;
【基金】：国家社会科学基金项目(15BFX092)
【分类号】：D924.3
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