泄露国家秘密犯罪刑事司法问题检讨

Review on Criminal Judicial Problems of the Offence of Divulging State Secrets

新刑法第398条未予以完善之前,该条所规定之犯罪的罪名在司法实践中应确定为泄露国家秘密犯罪。该罪的主体只能是自然人特殊主体,其既未遂形态仅存在于直接故意泄露国家秘密犯罪之中;其法条竞合犯只能根据“特别法优于普通法”原则与“重法优于轻法”原则,分别适用特别法法条与重法法条定罪处罚;其牵连犯形态应当适用从一重处断原则定罪处刑。要对司法实践中的各种泄露国家秘密犯罪科学适用法定刑,必须坚持罪刑法定原则、罪责刑相适应原则、故意犯罪重于过失犯罪原则与从严治吏原则。

After the perfection of the criminal law, the modified article 398 prescribed an offence, which should be ascertained as the crime of divulging state secrets in judicatory practice. This crime's subject can only be special subject of natural person. Its accomplished crime and attempted crime only exist in the offencesof divulging State secrets directly and intentionally .Its concurrent crime in legal provisions should be convicted and punished only by the principle that “special law is superior to common law” and the principle that“ severe law is superior to gentle law ”.Its implicational crime should be convicted and punished by applying the principle of giving the heavier one of the punishments.While applying the penalties prescribed by law scientifically to all of the offences of divulging State secrets in the judicial practice,it is necessary to uphold the principle of legality, the principle of suitable punishment for crime and criminal liability, the principle of that intentional crime is heavier than negligent crime and the principle of punishing officials more strictly.