宪法价值视域中的涉户犯罪——基于法教义学的体系化重构

Residence-related Crimes in the Perspective of Constitutional Value

宪法上的住宅自由所保障的并非被称为"住宅"的物理性建筑结构,而是人格的精神和身体存在于其中、私密且安宁的物理空间,使其免于公权力或他人的干扰,以利于公民私生活在其中能够无阻碍地自由展开。刑法规范和刑事判决理应承载并实践宪法的精神与价值,但主流刑法理论显然忽略了住宅在国法秩序中的独立价值。为全面评价"涉户犯罪",首先应根据"住宅作为个人私生活得以自由展开之物理空间的和平与安宁价值是否受到显著损害"这一基准,将涉户犯罪区分为"单纯形式性的涉户犯罪"和"实质性的涉户犯罪";进而根据相应基准,构建出"实质性的涉户犯罪"的四阶层结构;在此基础上,再对除入户盗窃与入户抢劫之外的其他入户犯罪加以体系性地区别处理。

The Inviolability of Residence which is described by the Article 39 of the Constitution is to protect not the architecture of the house, but the private and peaceful material space in which a person resides, free from the invasion of the public power and other people, and to leave the person operates his own private life freely. As the concretion of the constitutional norms, criminal legal norms and their judicial judgments should bear and exercise the spirit and value of constitution. The judg- ment in question, based on the theory of implicated offender, has chosen the offense of rape, but neg- lected the normative value of residence protected by the state legal system, which is independent of the property and personal body in it. This processing mode also fails to recognize the systematic ar- rangement of residence in the Criminal Law, and fails to recognize the difference between the Crimes Committed in the Residence and the Crimes Committed after Illegal Invasion into the Residence. In order to evaluate comprehensively the Residence-related Crimes, first of all, it is appropriate to differentiate between Mere Formative Residence-related Crimes and Substantial Residence-related Crimes, based on the consideration whether the constitutional value of residence has been considera- bly damaged. Secondly, it is necessary to construct a Four-Step System of Substantial Residence-re- lated Crimes, based on two standards, that is, the legality of entering the residence and the deliber- ation of the crimes committed after getting into the residence. On the basis of the above works, except for Theft and Robbery, it is proper for the judgment to treat the Crimes Committed after Illegal Invasion into the Residence differently, according to the different contextual articulation in the provisions of the Criminal Law, such as ＂if the circumstances are serious＂ or ＂if the circumstances are minor＂.