故意伤害罪若干争议问题探讨

Discussion on Controversial Issues of Intentional Injury Crime

故意伤害罪之伤害故意特指对造成轻伤、重伤后果所持有的态度,而不是泛指对任何损害他人健康结果所持的态度;故意轻伤未遂不成立犯罪、故意重伤未遂适用伤害致人轻伤的法定刑;不能确定何人的行为造成伤害的后果时,对于同时犯,应适用伤害未遂理论;多次伤害的,应认定为同种数罪,再根据适用刑罚的实际效果为标准确定是数罪并罚还是一罪从重处理。

As for intentional injury crime, the intent to injury doesn＇t generally refer to any attitude of damaging other＇s health, but specifically refers to the attitudes of causing slight and serious injury. Attempted intentional slight injury shouldn＇t be convicted as crime. Statutory sentence for slight injury should be applied to attempted intentional serious injury. If it isn＇t certain whose action causes the injury, the doctrine on attempts should be applied to the coincident principles. Repeated injury should be convicted plural crimes of the same kind, and then given joint punishments for plural crimes or heavier punishments for one crime in accordance with the actual effects caused by the application of penalty.