“危害国防利益罪”中的若干概念辨析

Discrimination of Several Concepts about the Offence against the Interest of National Defence

新修订的《刑法》增设了一章“危害国防利益罪”。但该章中对于若干犯罪主体的概念：“军人”、“战时”、“破坏军事通信罪”、“公民”等未作严密科学的界定，给法律的适用带来一定的影响。“军人”按照《中国人民解放军军语》的解释，应指具有“军籍”的人；严格、准确的“战时”是指“国家宣布进入战争状态，部队受领作战任务或遭敌袭击时”。“部队执行戒严任务或处置突发性暴力事件时”，以“战时论”，适用于刑法分则第十章，其余各章，凡涉及“战时”规定的，应只适应刑法第４５１条第一款规定的诸种情况，而不宜扩大解释；关于“破坏军事通信罪”，其犯罪主体应包括“物”和“活动”两种形式，如果是“物”，理应包含于武器装备、军事设施之内，罪名不好确定。如果是“活动”，其罪刑设计就会出现遗漏，有必要对刑法第３６９条加以改造和补充。“公民”

In the newly amended“Criminal Law”, there is a new chapter of the “offence against the interest of national defence”. However, several concepts concerning criminal subjects such as “armyman”,“wartime”,“crime of damaging military communication”, and “citizen” haven't been defined strictly and scientifically, which will have certain effects on the applicability of the law.“Army man”, according to “The military Language of the PLA”, is a man who has the military status; Strictly and correctly speaking,“wartime”refers to “the period during which the nation declares to be in the state of war and the troops accept the combat tasks or are attacked by the enemy”. “The period in which the troops enforce martial law or deal with sudden violant matters” can be regarded as “the wartime”, which is only applicable to the chapter 10 of the rules in the Criminal Law, and as for other chapters, those related to the stipulations of “wartime” are only applicable to the situations provided in the Article 451, Section 1 of the Criminal Law and are not suitable to be explained extensively; The criminal subjects of “the crime of damaging military communication”, should include two forms, “material” and “activity”. If it is the “material”,included in the category of weaponry and military istallations, and then it'll be hard to declare the crime;If it is the“activity”, and the stipulation of the crime and punishment will have omissions and it 'll be encessary to amend and complement the Article 369 of the Criminal Law; “Citizen” refers to the citizen on the active service or the reserve one.