实质解释立场下高空抛物罪的限缩适用

The limited Application of the Crime of Throwing Objects from a Height under the Position of Substantial Interpretation

《刑法修正案(十一)》设立高空抛物罪之前,司法机关在处理高空抛物案件时受刑事政策的目的引导呈现出犯罪和重刑化倾向,设立后仍存在对高空抛物罪不当适用的问题,应通过实质解释对刑事政策目的所引导下的罪刑规范进行适用限缩。基于实质解释立场,高空抛物罪的成立要求该行为严重侵害社会管理秩序;客观上具有高空抛物的行为危险属性及不特定少数人的行为对象;主观上具有高空抛物的行为故意。本罪的适用还需要妥善处理与有关犯罪竞合问题。遵循一般违法行为——高空抛物罪——其他重罪规范的判断逻辑思路,以保证高空抛物的定罪量刑适当。

Before the establishment of the Crime of Throwing Objects from a Height in the criminal law amendment(Ⅺ),the judicial organs were guided by the purpose of criminal policy,showing a tendency of crime and severe punishment.After the establishment,there is still the problem of improper application of the crime of throwing objects at high altitude.We should limit the application of the norms of crime and punishment guided by the purpose of criminal policy through substantive interpretation.Based on the position of substantive interpretation,the establishment of the Crime of Throwing Objects from a Height requires that the act seriously infringes the social management order;Objectively,it has the behavior risk attribute of throwing objects at high altitude and has no specific behavior object of a few people;Subjectively,it has the behavior intention of throwing objects at high altitude.The application of this crime also needs to properly deal with the concurrence with related crimes.In order to ensure that the conviction and sentencing of throwing objects at high altitude are appropriate,we should follow the judgment logic of the general illegal act-the Crime of Throwing Objects from a Height-other felonies.