殴打型寻衅滋事罪立法研究
发布时间：2019-06-02 20:40
【摘要】：寻衅滋事罪是基层司法实践中最常见的罪名之一，而殴打型寻衅滋事犯罪又是寻衅滋事犯罪中最常见的表现形式，，其与治安管理处罚法中的殴打行为，以及刑法中的故意伤害犯罪高度近似。其法条中的罪状描述过于含糊造成司法实践中罪与非罪、此罪与彼罪的界限模糊，使其司法适用成为长期困扰理论界及实践界的难题，并为司法权力的无限扩张提供了路径。虽然依照想象竞合犯“从一重处断”原则一定程度上可以区分此罪与彼罪，但是其带来的重刑主义导向及司法适用模糊，亦会导致实践中的变异。而将故意伤害罪与殴打型寻衅滋事罪界定为补充性法条竞合关系，按照“基本规定优于补充规定”的原则，则会造成量刑的失衡。故在现有立法框架下，难以对殴打型寻衅滋事罪作出明确的界定，同时该罪也未能实现对公民人身安全的完全保护。故建议将殴打型寻衅滋事犯罪独立为殴打罪，并将其设为亲告罪，在全面保护人身安全的同时也杜绝司法权力的无限扩张。
[Abstract]:The crime of provoking and causing trouble is one of the most common charges in the judicial practice at the grass-roots level, and the crime of fighting and causing trouble is the most common manifestation of the crime of provoking and causing trouble, which is related to the act of beating in the law of punishment of public security administration. And the crime of intentional injury in criminal law is highly similar. The description of the crime in its legal article is too vague, which leads to the blurring of the boundary between this crime and that crime in judicial practice, which makes its judicial application a difficult problem that has perplexed the theoretical and practical circles for a long time, and provides a way for the infinite expansion of judicial power. Although this crime can be distinguished from that crime to a certain extent according to the principle of "judging from one emphasis", the guidance of severe punishment and the ambiguity of judicial application brought about by it will also lead to variation in practice. The crime of intentional injury and the crime of assault and causing trouble are defined as the concurrence of supplementary laws, and according to the principle that "the basic provisions are superior to the supplementary provisions", the imbalance of sentencing will be caused. Therefore, under the existing legislative framework, it is difficult to make a clear definition of the crime of fighting and causing trouble, and at the same time, the crime has not been able to fully protect the personal safety of citizens. Therefore, it is suggested that the crime of fighting and causing trouble should be independent as the crime of assault, and it should be regarded as the crime of prosecution, which can not only protect the personal security in an all-round way, but also put an end to the unlimited expansion of judicial power.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2491411
[Abstract]:The crime of provoking and causing trouble is one of the most common charges in the judicial practice at the grass-roots level, and the crime of fighting and causing trouble is the most common manifestation of the crime of provoking and causing trouble, which is related to the act of beating in the law of punishment of public security administration. And the crime of intentional injury in criminal law is highly similar. The description of the crime in its legal article is too vague, which leads to the blurring of the boundary between this crime and that crime in judicial practice, which makes its judicial application a difficult problem that has perplexed the theoretical and practical circles for a long time, and provides a way for the infinite expansion of judicial power. Although this crime can be distinguished from that crime to a certain extent according to the principle of "judging from one emphasis", the guidance of severe punishment and the ambiguity of judicial application brought about by it will also lead to variation in practice. The crime of intentional injury and the crime of assault and causing trouble are defined as the concurrence of supplementary laws, and according to the principle that "the basic provisions are superior to the supplementary provisions", the imbalance of sentencing will be caused. Therefore, under the existing legislative framework, it is difficult to make a clear definition of the crime of fighting and causing trouble, and at the same time, the crime has not been able to fully protect the personal safety of citizens. Therefore, it is suggested that the crime of fighting and causing trouble should be independent as the crime of assault, and it should be regarded as the crime of prosecution, which can not only protect the personal security in an all-round way, but also put an end to the unlimited expansion of judicial power.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
【参考文献】
相关期刊论文 前4条
1 徐成宝;;寻衅滋事罪的立法渊源探析——以法律的继受为视角考察寻衅滋事罪的存在根据[J];财经政法资讯;2012年02期
2 陈兴良;;刑法竞合论[J];法商研究;2006年02期
3 张绍谦;试论刑罚功能的局限性[J];社会科学;2005年01期
4 陈洪兵;;不必严格区分法条竞合与想象竞合——大竞合论之提倡[J];清华法学;2012年01期
本文编号：2491411
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