积极刑法观下关于高空抛物的理解与适用

Understanding and Application of High Altitude Parabolism from a Positive Criminal Law Perspective

积极刑法观和持消极刑法观向来是理论界讨论的热点话题,两种观点的立场一直难解难分,随着《刑法修正案(十一)》增设了“高空抛物罪”等一系列轻罪,这也是体现出我国刑法发展倡导积极刑法观的思路,针对轻罪立法也引起不少学者的讨论,高空抛物入刑既是积极刑法观的体现也是符合时代发展的要求,但是针对高空抛物的“情节严重”要件法律尚未给出相应的标准,需要司法实践当中进行综合判定。高空抛物也存在与具体危险犯的竞合问题需要谨慎地处理认定,虽然我国倡导积极刑法观,但是不能冒进,而应当持谨慎的态度。

The positive and negative views on criminal law have always been hot topics discussed in the theoretical community.The positions of the two views have always been inseparable.With the addition of a series of misdemeanors such as"throwing objects from high altitude"in the Criminal Law Amendment(11),this also reflects the idea of advocating a positive criminal law view in the development of criminal law in China.Legislation for misdemeanors has also attracted discussions from many scholars,The punishment of high-altitude throwing is not only a manifestation of a positive criminal law view but also in line with the requirements of the times.However,the law has not yet provided corresponding standards for the"serious circumstances"of high-altitude throwing,and comprehensive judgments need to be made in judicial practice.There is also a problem of overlap between high-altitude throwing and specific dangerous crimes that requires careful handling and identification.Although China advocates a positive criminal law view,it should not be rushed forward,but should be approached with caution.