多次犯的刑法规制、理论发展与生成机理探析

An Analysis of the Criminal Regulation and Theory Development and Generation Mechanism of Continual Offences

我国刑法中规定的多次犯,是指行为人在一定期限内因多次实施同种性质的违法行为被行政主管机关给予二次以上行政处罚后,又实施该种违法行为构成的犯罪。目前我国的刑法中有十多个罪名设定了多次犯的构罪模式,以司法解释为主,刑法学界对这一现象的认识尚未统一、研究也相对较少。多次犯的出现是我国社会经济发展和刑事司法实践的产物,新中国第一部刑法典——1979年《中华人民共和国刑法》中并无多次犯的明确规定,但此后的若干单行刑法及司法解释中开始出现此类型犯罪规定,1997年《刑法》吸纳了前述单行刑法与司法解释的相关内容,之后的多次刑法修正案及司法解释使得多次犯逐渐成熟与定型。在我国刑法中,多次犯因其具有严重侵害法益的社会危害性、我国在社会转型期防控犯罪的需要、固有刑法打击此类犯罪难度较大等因素而成为区别于结果犯、危险犯等犯罪类型的新的犯罪类型。

In China＇s criminal law,continual offence is defined as the offence committed by the perpetrator in a certain period of time after he has been meted out twice or more administrative penalties by administrative authorities for committing the offence several times. At present,continual crime is applied to more than a dozen of crimes in China＇s criminal law.However,criminal law scholars have yet reached consensus about this phenomenon,and there is few studies on continual crimes. The concept of continual crime is the result of social and economic development and criminal justice practice. There was no clear definition about continual crimes in the first Criminal Code of new China——Criminal Law of the People＇s Republic of China enacted in 1979. But after that,regulations about this type of crime were seen in a number of specific criminal laws and judicial interpretations;the 1997 version of criminal law absorbed related content of the above mentioned specific criminal laws and judicial interpretations,and the later criminal law amendments and judicial interpretations finally led to a more mature definition about continual crimes. Continual crime constitute a new type of crime mode which differs from consequential crime and potential damage offense due to its social harmfulness of serious violation of law interests and the need for crime prevention in the period of national transformation and due to the greater difficulty in fighting against such kind of crimes.