论非法出售、提供考试试题、答案的刑法规制

发布时间：2019-06-09 11:38

【摘要】：非法出售或提供试题、答案罪,是《刑法修正案(九)》新增设的罪名之一,在刑法理论领域中研究甚少,在现实社会中却问题颇多。它以风险刑法时代“功能主义”导向下、社会防卫思想引领的刑事规范整体为制度背景;它以维系每个个体的公平竞争权的考试制度,而非维护诚信的社会风尚和文化传统,作为保护法益,以迎合二战后法益概念发展的客观化趋势;以体现国家以及省级行政机关权威的国家考试为适用前提,背后体现着行政主体的权限划分;它属于抽象的危险犯,以发生侵害公平的选拔机制的隐性危险为既遂状态下的法益侵害结果,但在隔地犯等情形下存在成立未完成形态的可能性;在司法实务中具有三种不同的行为样态,分别为串通考试组织者非法出售或提供试题、答案;出售或提供以偷拍、偷录方式获取之试题、答案;以及出售或提供以网络渠道获得之试题、答案;而后两种情形中或围绕出售试题行为与非法获取国家秘密行为的牵连关系的存在与否,或围绕行为人主观故意的成立与否,争议颇多;它属于“短缩的二行为犯”,以通过违背法定程序不当获取选拔制度下的竞争优势为犯罪目的,将辅导机构试前押题的行为排除出刑罚的范围;刑罚层面上,它以打击的轻刑化为特点,实务中极少适用“情节严重”的条款。而为了有效遏制其组织化的犯罪态势,应当根据行为人在“产业”关系网中的作用大小分配相应的刑罚。就本罪与相关犯罪的关系,因《刑法》第二百八十四条第二款的存在,其与组织考试作弊罪的关系显得十分暧昧:是否与与组织考试作弊的犯罪人成立共同犯罪,以及在共同犯罪中是按正犯还是按照帮助犯处罚,是其区分的两个途径,但均不理想;围绕试题、答案是否属于“国家秘密”的认定,它与非法获取国家秘密罪存在区分的可能性;而鉴于其事后打击的有效性,它与事前防范试题事前获取的非法获取国家秘密罪共同构成了打击“黑色考试产业”的坚固堡垒。伴随着以它为缩影的新一轮刑法修订的潮流,一个“预防刑论”主导下的社会风貌正徐徐展开。
[Abstract]:The crime of illegally selling or providing questions and answers is one of the new charges in the Criminal Law Amendment (9). There are few studies in the field of criminal law theory, but there are many problems in the real society. Under the guidance of "functionalism" in the era of risk criminal law, it takes the criminal norms led by the thought of social defense as the whole as the institutional background. It takes the examination system to maintain the fair competition right of each individual, rather than the social fashion and cultural tradition of maintaining good faith, as the protection of legal interests, in order to cater to the objective trend of the development of the concept of legal interests after World War II. Taking the national examination, which embodies the authority of the state and provincial administrative organs, as the applicable premise, there is the division of authority of the administrative subject behind it. It belongs to abstract dangerous crime, which takes the hidden danger of infringing fair selection mechanism as the result of legal interest infringement in accomplished state, but there is the possibility of establishing unfinished form in the case of transgression and so on. In judicial practice, there are three different behavior patterns, namely, the illegal sale or provision of questions and answers by colluding examination organizers, the sale or provision of questions and answers obtained by means of illegal photography and illegal recording, and the three different forms of behavior in judicial practice, namely, the illegal sale or provision of questions and answers by colluding examination organizers, and the sale or provision of questions and answers. And sell or provide online channels to obtain questions, answers; In the latter two cases, there are many disputes about the existence of the relationship between the sale of test questions and the illegal acquisition of state secrets, or the subjective and intentional establishment of the perpetrator. It belongs to the "short crime of two acts", in order to obtain the competitive advantage under the selection system by violating the legal procedure improperly as the criminal purpose, the behavior of the tutoring organization to take the examination questions before the trial is excluded from the scope of the penalty. At the level of penalty, it is characterized by light punishment, and the clause of "serious circumstances" is rarely applied in practice. In order to effectively curb the organized crime situation, the corresponding penalty should be distributed according to the role of the actor in the "industrial" network. As far as the relationship between this crime and the related crimes is concerned, because of the existence of Article 234, paragraph 2, of the Criminal Law, the relationship between the crime and the crime of cheating in the organized examination is very ambiguous: whether to establish a joint crime with the offender who cheated in the organized examination, And in the joint crime, whether to punish according to the principal offender or according to the help crime is the two ways to distinguish it, but it is not ideal. Around the test question, whether the answer belongs to the identification of "state secret" is possible to distinguish it from the crime of illegal acquisition of state secret. In view of the effectiveness of its ex post facto crackdown, it together with the crime of illegal acquisition of state secrets obtained in advance constitutes a solid fortress to crack down on the "black examination industry". With the trend of a new round of criminal law revision with it as a microcosm, a social style led by the theory of preventive punishment is slowly developing.
【学位授予单位】：江苏大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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