摘要
轻罪概念不能仅从立法上关于法定刑轻重设置和司法上关于判决轻重作绝对界定,而应基于刑事政策从犯罪治理意义上作相对界定.在轻罪司法治理维度,轻罪的定罪因较为广泛地存在把本为行为犯等犯罪既遂形态规则误认为定罪规则、误将过失的应知认定为故意的应知、误把理论学说作为定罪依据等误区,而加剧了轻罪的司法治理困境.为此,需基于我国刑法立法及其理论原理,构建本土化轻罪定罪规则:区分直接故意与其他主观方面,分别按直接故意内容或间接故意、过失所支配的结果定罪;基于案件的事实适用刑法所有相关法律规定定罪;绝不基于域外刑法规定及由此形成的刑法理论定罪.
Abstract
The issue of minor offenses is both a hot topic of current social concern and a pain point in social governance.This is not only because of its large quantity and possession of significant judicial re-sources,but also because of its criminal labels and the serious accompanying consequences it brings,which can trigger related social problems.Although the issue of minor offenses has become a widely dis-cussed judicial hot topic in both theory and practice,there are misconceptions in defining the concept of minor offenses in practice and theory.However,the basic goal of judicial governance for minor offenses is to adjust criminal policies and judicial systems to alleviate the problem of a large number of minor offenses and their accompanying consequences caused by the addition of administrative violations in legislation.In China,"minor offenses"is not a legal concept and has a confusing definition and conceptual use in theo-retical,judicial,and criminal governance fields.Taking a comprehensive view of relevant theories and practices,the divergence and controversy of this concept mainly manifest in three aspects:at what level the concept of"misdemeanor"is determined,what criteria is used to determine"misdemeanor",and whether multiple punishments such as statutory punishment or declared punishment are defined as"mis-demeanor"criteria.Compared to the governance of minor offenses,crimes in China should be divided into two categories:minor offenses and serious offenses.The so-called"minor offenses"with a statutory sentence of less than one year of fixed-term imprisonment or the type of punishment should be considered as a type of"minor offenses".Based on the principle of dialectical theory that unifies form and sub-stance,the"comprehensive standard theory"that insists on the unity of form and substance should be more reasonable than the"form standard theory"and"substance standard theory";the current theoretical and practical propositions of"less than three years of statutory punishment""less than one year of statutory punishment"and"less than three years of declared punishment"are not reasonable.They should be determined to base on the goal of judicial governance of minor offenses,combined with legislative provisions and criminal trends.In terms of extension,they should be smaller than the scope of"minor offenses"in the judiciary,and in terms of connotation,they are only crimes in the legislative and judicial minor offenses that result in a large number of cases and social problems due to the imbalance of crime and punishment in the legislative setting.Therefore,it is determined that the construction of the rules for convicting minor offenses under the judicial governance of minor offenses should address the prominent issues in the current definition and conviction of minor offenses,including the widespread mis-conceptions of mistaking the completed form rules of crimes such as behavioral offenses as conviction rules,mistaking the knowledge of negligence as intentional knowledge,and mistaking theoretical theories as the basis for conviction,which exacerbate the difficulties in the judicial governance of minor offenses.Based on China's criminal law legislation and its theoretical principles,it should be localized and con-structed,including distinguishing direct intent from other subjective crimes and convicting them based on the content of direct intent or the results dominated by indirect intent and negligence,as well as convic-ting based on the facts of the case and applying all relevant legal provisions of the criminal law,and never convicting based on foreign criminal law provisions and the resulting criminal law theories.
NETL
NSTL
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