摘要
随着积极刑法观的深入,我国刑法立法结构呈现出轻罪立法走向,但若想用轻罪概念囊括立法和司法两方面的本质特征是勉为其难,也易产生歧义.合理的思路是在坚持轻罪概念所反映的立法本源性特征基础上,采用轻犯罪概念以充分展示动态司法过程与司法态势.对于轻犯罪的治理问题,首先需要明确阻却犯罪成立的理论支撑与出罪支点,即在坚持我国犯罪构成体系的前提下以《刑法》第 13 条但书及正当化事由作为出罪的主要通道.我国四要件犯罪构成体系遵循了从事实判断到规范判断再到价值判断、从客观判断再到主观判断这一判断犯罪成立的基本规律,而且同样具有出罪的构成要素.其次是建立社会危害性的综合评价标准,即从主客观两个方面来把握《刑法》第13 条但书中"情节显著轻微"的标准.最后是强调轻微犯罪的治罪与治理,针对轻微犯罪的不法应坚持实质违法性的判断,切勿以违反前置法这一形式外观为由忽视实质判断.
Abstract
With the deepening of the proactive criminal law perspective,the legislative structure of China's criminal law shows a trend towards minor offense legislation.However,attempting to encompass both the legislative and judicial essential characteristics using the concept of minor offenses alone is an o-verly ambitious task,prone to creating ambiguities.A reasonable approach is to adopt the concept of mi-nor crimes to fully demonstrate the dynamic judicial processes and trends,while maintaining the original legislative characteristics reflected by the concept of minor offenses.In addressing the governance of minor crimes,it is crucial to first clarify the theoretical support and exculpation points for precluding the estab-lishment of a crime.This means using Article 13's exception clause of the Criminal Law and grounds for justification as the primary channels for exculpation,while adhering to China's crime constitution system.Although the framework differs among China's four-elements crime constitution system,the continental law system's hierarchical approach,the Anglo-American binary system,the constitutive elements of cul-pability within these frameworks are the same.They all consist of objective and subjective elements,spe-cifically including conduct,result,causation,specific times and places,the actor(including special ac-tors),and subjective guilt(including specific criminal intents and motives).Moreover,China's four-elements crime constitution system also follows the basic rule of determining crime establishment,which progresses from factual to normative to value judgment,from objective to subjective judgment,and simi-larly includes exculpatory elements.In the crime constitution system,legitimate conduct(such as justifi-able defense and emergency avoidance)in the objective aspect serves as a pathway for exculpa-tion.Second is establishing a comprehensive evaluation standard for social harm,considering both objec-tive and subjective aspects to grasp the"significantly minor circumstances"standard in Article 13's ex-ception clause of the Criminal Law.Objectively,this requires a comprehensive examination of the manner in which the actor carried out specific conduct,the harm or high risk of harm to legal interests caused by the conduct,the time and environment during the conduct,the actor's behaviors after completing the con-duct,the illegal proceeds and their disposition,and whether the victim was at fault,consent and content.Subjectively,this involves evaluating the actor's motives and purposes,subjective cognition,whether co-ercion or control was involved,consistent behaviors,signs of remorse,the possibility of recognizing ille-gality,and whether there was an attempt to evade investigation.Finally,the penalization and governance of minor crimes should be emphasized.First,the concept of reasonable exculpation for minor crimes should be established.Due to their nature of minor illegality,there is a challenge in delineating bounda-ries between criminal unlawfulness and administrative or civil violations among pre-existing laws like civil or administrative regulations.When unclear or indeterminable,the principle of in dubio pro reo should be followed for exculpation.Second,the judgment of substantial illegality should be adhered to.Minor in-fringing behaviors,after meeting the necessary objective and subjective elements,should be exculpated according to the thorough standard of substantive illegality assessment provided by Article 13's exception clause of the Criminal Law.One must not ignore substantive judgments under the guise of merely violating pre-existing laws.
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