论寻衅滋事罪的完善

发布时间：2019-03-16 08:13

【摘要】：我国在1997年之前是没有寻衅滋事罪的,其是由流氓罪演变而来的。流氓罪是1979年《刑法》中规定的,1997年《刑法》修订时,将流氓罪废除了,流氓罪演变出多个罪名,其中寻衅滋事罪便是其中之一;2011年2月25日,《刑法修正案(八)》通过,其中第四十条对寻衅滋事罪做了修改,增加了一条“纠集他人多次实施前款行为的”,且刑法处罚更为严厉;2013年9月10日,两高出台了《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》,将寻衅滋事罪的适用范围扩大到网络领域,以及如何处罚的情形。寻衅滋事罪从无到有,从不完善到逐步完善,这一系列的变化可以看出,寻衅滋事罪在完善,立法在完善。近年来,以寻衅滋事罪定罪处罚的案件越来越多。但是本罪犯罪构成十分抽象,在使用的时候缺乏具体标准从而导致司法实践之中认定存在着不规范的现象。1979年刑法中的流氓罪被称为“口袋罪”,正是因为在司法实践中缺乏具体的标准,导致了滥用,所以将该罪取消了,以其他罪名代替。寻衅滋事罪是流氓罪分解出来的罪名之一,但对此罪的差评并不比流氓罪少。一个罪名的内涵和外延都没有标准,那么其也将注定沦为“口袋罪”。寻衅滋事罪也正式因为如此,在司法实践中被称为最难以认定和适用的,该罪直接被认定为“口袋罪”。正因为如此,当前理论学界对于寻衅滋事罪的存废存在争论,即废止说和保留说两大类。废止说的大多数学者均是基于寻衅滋事罪的犯罪构成规定不明确,导致与其他罪名的行为方式界限不清,司法实践中出现认定困难,主张将寻衅滋事罪予以废除,该罪的四种行为类型分解到刑法中已有的其他相关罪名中。而保留说的学者认为,寻衅滋事罪在我国的刑法体系中具有补充的性质,其存在与发展方向与我国当前宽严相济的刑事政策相吻合,其存在有合理性和必要性,对于司法实践中出现的问题可以做出合理的解释,不应该将其废除。随着1997年确定的罪刑法定原则不断深入人心,以及法律的不断完善,人们对罪名罪状的相对精确度要求越来越高,理论界与司法界要求废止或取消寻衅滋事罪的呼声未曾停止过。但是,我国是一个成文法国家,在现行法律未被修改或作出有权解释之前,他的权威性应该坚决被维护。在本文中,笔者试图阐述国内外立法的相关情况,分析寻衅滋事罪存在的原因以及本身的特征,证实该罪在我国存在的合理性和必要性。
[Abstract]:Before 1997, there was no crime of provoking and causing trouble in our country, which evolved from the crime of hooliganism. The crime of hooliganism is stipulated in the Criminal Law of 1979. When the Criminal Law was amended in 1997, the crime of hooliganism was abolished, and the crime of hooliganism evolved into a number of charges, of which the crime of provoking and causing trouble was one of them. On 25 February 2011, the Amendment to the Criminal Code (VIII) was adopted, in which Article 40 amended the crime of causing aggression and nuisance by adding an article "to gather others to commit the preceding acts on many occasions", and the criminal punishment was more severe; On September 10, 2013, the two high schools issued an interpretation of several issues concerning the application of information networks in criminal cases, such as defamation, which extended the scope of the crime of defiance and nuisance to the network field and how to punish it. This series of changes can be seen that the crime of provoking aggression and causing trouble is being perfected and the legislation is being perfected. In recent years, there have been more and more cases of conviction and punishment for provocative and troublesome crimes. However, the composition of this crime is very abstract, and the lack of specific standards in its use leads to the existence of irregularities in judicial practice. In 1979, the crime of hooliganism in criminal law was called "pocket crime". It was the lack of specific standards in judicial practice that led to abuse, so the crime was abolished and replaced by other offences. The crime of provoking and causing trouble is one of the crimes decomposed from the crime of hooliganism, but the bad evaluation of this crime is not less than the crime of hooliganism. The connotation and extension of a crime has no standard, then it will also be doomed to "pocket crime". As a result, the crime of defiance and nuisance is regarded as the most difficult to identify and apply in judicial practice, and the crime is directly recognized as "pocket crime". Because of this, there is an argument about the existence and abolishment of the crime of provoking and causing trouble, that is, the theory of abrogation and the theory of reservation. The majority of scholars who abrogate this theory are based on the unclear provisions on the constitution of the crime of provoking and causing trouble, which leads to a unclear line of conduct with other offences, and difficulties in identifying the crime in judicial practice, and advocates the abolition of the crime of provoking aggression and causing trouble. The four types of acts of the crime are divided into other related offences existing in the criminal law. The reserving scholars believe that the crime of aggression and nuisance has a supplementary nature in the criminal law system of our country, its existence and development direction are consistent with our current criminal policy of combining leniency and severity, and its existence is reasonable and necessary, and its existence is reasonable and necessary. The problems in judicial practice can be explained reasonably and should not be abolished. With the continuous popularity of the legal principle of crime and punishment established in 1997, as well as the continuous improvement of the law, the relative accuracy of the charges is required to be more and more accurate. The theoretical and judicial demands for the abolition or cancellation of the crime of provoking and causing trouble have not stopped. However, our country is a statutory law country, its authority should be firmly preserved before the existing law has been amended or has the right to explain. In this paper, the author tries to expound the domestic and foreign legislation related situation, analyze the cause of the existence of the crime of aggression and nuisance and its own characteristics, confirm the rationality and necessity of the existence of the crime in our country.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3

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