对刑法第133条“逃逸”的逻辑解释——以加重犯为视角

Logical Explain for Absconding in Article 133 of Criminal Law

刑法第133条第二段和第三段规定的两处"逃逸",在罪刑理论上意义不同。各处"逃逸"的法律属性及功能应根据交通肇事基本罪的成立与否来决定。当基本罪成立时,第二段的"逃逸"属于加重处罚情节,第三段的"逃逸致人死亡"是基本罪的结果加重犯。其中,在基本罪无死亡结果情形下的"逃逸"又导致死亡结果时,为基本罪的(行为结果的)复合加重犯。当基本罪不成立时,第二段的"逃逸"是以交通肇事行为为基础的犯罪构成要件的内容,具有被独立评价的地位;第三段的"逃逸致人死亡"是以第二段"逃逸"为原因力的结果加重犯。现行的立法规定是以"逃逸"为重叠要素的两个加重结构的简化形式。

Both absconding in the second part and the third one of article 133 of criminal law have different meaning in theory of convicting somebody and measurement of penalty. Every one＇ s law attribute and function should be decided depending on that whether basic offense of causing traffic casualties has been established. If basic offense has been established, the absconding of the second part is a factor of aggravating penalization, and those who cause death because of their in the absconding of the third part become aggravated offense by consequence. But, under basic offence no result of death, absconding causing result of death is complex aggravated offences with the conduct and result factor. On the contrary, the absconding of the second part is content of crime constitution condition basic on the conduct of causing traffic casualties, and it has independent position by assessment in legislation. Those who cause death because of their absconding in the third part are aggravated offense by consequence due to the absconding of the second one. Current legislation are simplified forms both the aggravated conduction with overlapped essential factor of the absconding,