论聚众斗殴罪中的“械”——以扩张解释的适用限度为视角

On the “Weapon” in Crime of Affray

"持械"是聚众斗殴犯罪中的法定刑升格条件。司法实践中出现的类似驾驶车辆撞击的新情况导致对"械"的理解出现重大分歧,必须发动刑法解释。对于如何在罪刑法定的基础上把握扩张解释的限度以免滑入类推解释是必须要加以警惕的问题。要积极探求刑法条文所欲保护的具体法益的目的,在词义范围上进行适应性扩张,必须以条文词义最大射程为限,且不能超越国民的可预测范围。

Armed with weapon is a condition of the legal punishment upgraded in the crime of affray. Some forms of armed with weapon like driving a car hitting people have happened in real cases of gang war, and whether it is a kind of ＂armed with weapon＂ has initiated a great difference of opinion, so it is very necessary to start an interpretation to criminal law. And it must be forbidden to be led by analogy explanation. We must consider the penal code itself very clearly and find its purport precisely, on the condition of following close to the utmost meaning of the words and the utmost range of people＇s understanding.