日本刑法中现场助威罪的中国语境检视

Under the Context of Chinese to Study on Crimes of Cheer in Scence of Japanese Criminal Law

日本刑法中规定在犯伤害罪时，在现场助势的，自己虽然未对他人实施伤害行为，但仍然成立比伤害罪的帮助犯刑罚更轻的现场助威罪。而我国现场助威行为也常见于故意伤害等犯罪场合。进行行为性质比较分析可以将其与帮助行为、教唆行为区别开来。在中国语境下，需要探讨现场助威行为成立的条件和进行纳入法律网络进行规制的功利性和合理性的分析。因此现场助威行为在中国语境中应该认定为违法行为．但不宜确立为犯罪行为。

The regulation of commit intentional injury in Japanese criminal law says, people cheer up for the crime in scence, but they ought to be accused of Crimes of Cheer in Scence, which is much lighter than the punishment of the help offender, despite of without doing any intentional injury by themselves. In our country, the act of cheer in scence also are commonly seen in the occasion of intentional injury crimes. To comparative analysis the nature of behavior, we can separate the act of cheer in scence from help and instigation. Under the context of Chinese, we need to study the establishment conditions of the act of cheer in scence, and to analyze the utility and rationality reasons of legalization. In a word, the act of cheer in scence should be affirmed illegal activity but not criminal behavior.