内蒙古地区蒙古族激情犯罪研究
发布时间：2018-08-30 17:08
【摘要】： 所谓激情在心理学意义上是一种强烈情感的表现形式,当人在外界强烈的刺激下,由于认识范围缩小,内控力减弱,不能正确评价自己行为的意义和后果,从而产生具有突发性、短暂性和难以控制性等特点的行为①。 激情犯罪,是法学界的一个新用语。在我国的刑事立法中没有“激情犯罪”这个用语。对此,学者们做出了不同的定义:有人认为激情犯罪就是指行为人由于受到某种不良刺激,处于消极的激情状态,大脑皮层瞬时产生“意识狭隘”现象,从而产生犯罪动机和犯罪目的,实施犯罪行为。简单而言,激情犯罪就是行为人在激情造成的非理性状态下实施的犯罪行为。也有人认为激情犯罪是行为人在因重大刺激所造成的激情状态(非理性状态)下实施的犯罪行为②。还有人认为激情犯可以定义为:因被害人不当言行产生的短暂、强烈的极度愤怒的情感(激情)而丧失自我控制能力,并于不当言行之时或之后合理的时间内实施犯罪,刑事立法对之予以从宽处罚的犯罪人。并且认为激情犯罪行为在一定程度上是符合法律与社会道德所维系的基本价值要求的。 犯罪学的研究表明,作为一种呈发作状的暴力性犯罪的激情犯罪,虽然往往酿成严重危害社会的恶果,但作为突发性的故意犯罪,行为人因强烈的激愤情绪所影响,辨认和控制自己行为的能力明显减弱,主观恶性程度降低,所以激情犯罪人的主观恶性相对较小。从实际情况看,外界的刺激是导致激情犯罪发生的直接诱因,而行为人本人一般是并无前科的偶犯,无卑劣的犯罪目的动机,深得公众舆论的同情。因此,刑法在将其作为罪犯加以处罚的同时,有必要做出不同于其他普通故意犯罪的专门规定,从而为对激情犯罪的从宽处罚提供法律依据和保障,这是外国刑法立法规定激情犯罪的实质和目的。由此可见,世界各国对激情犯罪做出规定的根据在于激情犯罪不同于普通故意犯罪的特殊性。 本文认为:刑法对激情犯罪做出明文规定利大于弊。这也许正是大多数国家以各种方式明文规定激情犯罪的重要原因之一。基于此,笔者认为,我国刑法立法也应该对激情犯罪做出明文规定。 世界各国刑法针对激情犯罪的规定,大体可归纳为三种方式:其一是:分则式。即仅在分则中对激情犯罪做出具体的作单行规定。采取此种方式的是加拿大、美国、德国、保加尼亚和我国的台湾等国家或地区。其二是总则式。其三为“总则加分则式”。本文认为,“总则加分则式”的立法形式对于我国国情较为合适。因为它是对前两种方式的优点的综合、取长补短的产物。其不仅在总则中作概括性规定,防止了漏洞的出现,同时又在分则中就激情犯罪的具体情况作了较为具体、明确的规定,适当地弥补了“总则式”的不足。 不同国家的成员因生活环境的不同形成了区别于其它民族的性格特征。蒙古族人也不例外,在长期历史发展过程中,所处的自然环境、生产生活方式、社会物质条件、传统文化、信仰及其教育环境的影响下形成了开朗、活泼、善歌舞,好交往,慷慨大方,温厚、热情好客的性格。因此,其激情犯罪也有其不同于其他民族的特点。 本文在分析了蒙古族激情犯罪的特征、类型、心理机制等基础上,以乌拉特后旗蒙古族激情犯罪典型案例为对照,试图概括蒙古族激情犯罪研究对我国刑事立法的启示。
[Abstract]:The so-called passion is a form of expression of strong emotions in the psychological sense. When people are stimulated by strong external stimuli, they can not correctly evaluate the significance and consequences of their own behavior because of the narrowing of the scope of cognition and the weakening of internal control, which results in sudden, transient and uncontrollable behavior.
Crime of passion is a new term in the field of law.There is no such term as "crime of passion" in the criminal legislation of our country.Scholars have made different definitions.Some people think that crime of passion refers to the phenomenon of "narrow-mindedness" in the cerebral cortex caused by passive excitation. Simply put, passion crime is a criminal act committed by the perpetrator in an irrational state caused by passion. Others believe that passion crime is a criminal act committed by the perpetrator in an irrational state caused by a great stimulus. Passion crime can be defined as a criminal who loses self-control and commits a crime within a reasonable time after the victim's improper words and deeds because of his short-term, intense and extremely angry emotion (passion), and is leniently punished by criminal legislation. The basic value requirements of law and social morality.
Criminological studies have shown that, as a violent crime with a paroxysmal form, passionate crime often results in serious social harm, but as a sudden intentional crime, the actor's ability to identify and control his own behavior is obviously weakened, and the subjective malignancy is reduced, so the passionate crime is a sudden intentional crime. The subjective malignancy of human beings is relatively small. In fact, the external stimulus is the direct cause of the passion crime, and the perpetrator himself is generally an accidental offender without previous conviction and has no evil motive for the purpose of the crime, which is deeply sympathized by public opinion. Therefore, it is necessary to make a difference between the criminal law and the criminal law when punishing him as a criminal. It is the essence and purpose of the foreign criminal law legislation to stipulate the crime of passion. It can be seen that the basis for the stipulation of the crime of passion in the world is the particularity of the crime of passion different from that of ordinary intent.
This article holds that the advantages outweigh the disadvantages of expressly prescribing the crime of passion in criminal law, which may be one of the important reasons why most countries expressly prescribe the crime of passion in various ways.
There are three ways to regulate passion crime in criminal law of all countries in the world: one is the sub-rule type, i.e. to make specific provisions for passion crime only in the sub-rule. This paper holds that the legislative form of "general rule plus minute rule" is more suitable for China's national conditions, because it is the product of the combination of the advantages of the former two modes and makes up for the shortcomings. The body clearly stipulates that it has made up for the deficiency of the general rule.
Mongolians are no exception. In the course of long-term historical development, under the influence of natural environment, production and life style, social and material conditions, traditional culture, beliefs and educational environment, they have formed a cheerful, lively, good at singing and dancing, and good at communication. The personality of generosity, gentleness and hospitality makes the passionate crime different from other nationalities.
Based on the analysis of the characteristics, types and psychological mechanism of Mongolian passionate crime, this paper tries to summarize the Enlightenment of Mongolian passionate crime research on criminal legislation in China by comparing the typical cases of Mongolian passionate crime in Urat Houqi.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D917
本文编号：2213724
[Abstract]:The so-called passion is a form of expression of strong emotions in the psychological sense. When people are stimulated by strong external stimuli, they can not correctly evaluate the significance and consequences of their own behavior because of the narrowing of the scope of cognition and the weakening of internal control, which results in sudden, transient and uncontrollable behavior.
Crime of passion is a new term in the field of law.There is no such term as "crime of passion" in the criminal legislation of our country.Scholars have made different definitions.Some people think that crime of passion refers to the phenomenon of "narrow-mindedness" in the cerebral cortex caused by passive excitation. Simply put, passion crime is a criminal act committed by the perpetrator in an irrational state caused by passion. Others believe that passion crime is a criminal act committed by the perpetrator in an irrational state caused by a great stimulus. Passion crime can be defined as a criminal who loses self-control and commits a crime within a reasonable time after the victim's improper words and deeds because of his short-term, intense and extremely angry emotion (passion), and is leniently punished by criminal legislation. The basic value requirements of law and social morality.
Criminological studies have shown that, as a violent crime with a paroxysmal form, passionate crime often results in serious social harm, but as a sudden intentional crime, the actor's ability to identify and control his own behavior is obviously weakened, and the subjective malignancy is reduced, so the passionate crime is a sudden intentional crime. The subjective malignancy of human beings is relatively small. In fact, the external stimulus is the direct cause of the passion crime, and the perpetrator himself is generally an accidental offender without previous conviction and has no evil motive for the purpose of the crime, which is deeply sympathized by public opinion. Therefore, it is necessary to make a difference between the criminal law and the criminal law when punishing him as a criminal. It is the essence and purpose of the foreign criminal law legislation to stipulate the crime of passion. It can be seen that the basis for the stipulation of the crime of passion in the world is the particularity of the crime of passion different from that of ordinary intent.
This article holds that the advantages outweigh the disadvantages of expressly prescribing the crime of passion in criminal law, which may be one of the important reasons why most countries expressly prescribe the crime of passion in various ways.
There are three ways to regulate passion crime in criminal law of all countries in the world: one is the sub-rule type, i.e. to make specific provisions for passion crime only in the sub-rule. This paper holds that the legislative form of "general rule plus minute rule" is more suitable for China's national conditions, because it is the product of the combination of the advantages of the former two modes and makes up for the shortcomings. The body clearly stipulates that it has made up for the deficiency of the general rule.
Mongolians are no exception. In the course of long-term historical development, under the influence of natural environment, production and life style, social and material conditions, traditional culture, beliefs and educational environment, they have formed a cheerful, lively, good at singing and dancing, and good at communication. The personality of generosity, gentleness and hospitality makes the passionate crime different from other nationalities.
Based on the analysis of the characteristics, types and psychological mechanism of Mongolian passionate crime, this paper tries to summarize the Enlightenment of Mongolian passionate crime research on criminal legislation in China by comparing the typical cases of Mongolian passionate crime in Urat Houqi.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D917
【引证文献】
相关期刊论文 前4条
1 刘妮雅;;十年来我国激情犯罪的研究取向与展望[J];当代教育理论与实践;2012年07期
2 赵阿茹那;;大学生法律意识的培养[J];法制博览(中旬刊);2013年02期
3 贺撒文;;高校师生矛盾冲突导致的违法犯罪问题研究[J];黄石理工学院学报(人文社会科学版);2010年01期
4 刘妮雅;;十年来我国激情犯罪的研究取向与教育启示[J];基础教育;2012年03期
相关硕士学位论文 前1条
1 贺撒文;高校师生矛盾冲突导致的违法犯罪问题研究[D];中国政法大学;2009年
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