转化犯亦或加重犯?——论刑讯逼供的罪质演进

Transitional Crimes or Aggregated Consequential Offense——On Evolution of the Degree and Nature of the Crime of Extorting Confessions by Torture

我国刑法第247条规定了刑讯逼供的转化犯,对转化犯的界定应当立足于法律规定。转化犯具有罪过的升级性、行为的一体性以及定罪量刑的法定性等特征。刑讯逼供行为人主观上多是为了获取口供,罪质不转化的可能性客观上大量存在。实践中,刑讯逼供手段极其恶劣,危害结果也呈多样性,"致人伤残、死亡"作为故意伤害或故意杀人行为的后果不具典型性。对刑讯逼供罪宜选用加重犯立法模式。

China＇s Criminal Law Article 247 provides what is the transitional crime of extorting a confession by torture. The definition of transitional crime should be based on the laws. Transitional crime is characterized by the scalability of offense, the integrality of behavior, the legality of conviction and sentencing and so on. The actor of extorting confessions by torture attempts subjectively to get confession while objectively the possibility abounds that degree and nature of the crime does not transform. In practice, the means of extorting confessions is terrible, and the results of it are various. To cause disability or death as the results of intentional injury or homicide is not typical. The legislative model of aggregated consequential offense should be applied to the crime of extorting confessions by torture.