“激愤杀人”之构成要件及立法争议探析

Analysis of Constitutive Requirements and Legislative Disputes on Rage Killing

激愤杀人比激情杀人在概念上更具优势。激愤杀人是指行为人因刺激而生义愤,又当场因义愤支配而故意杀人的情形。其构成要件包括刺激要件、激愤要件、当场杀人要件、因果关系要件。目前,我国缺乏通过增设激愤杀人罪来降低故意杀人罪判处死刑的内在动因。考虑到域外立法不一致、当前司法实践问题不突出,以及维护罪刑均衡原则的要求,刑法不宜对激愤杀人规定轻缓的相对确定的法定刑。然而,为提升激愤杀人规定的法律位阶和确保个案公正,刑法作抽象的从轻规定是合适的。

Rage killing has more advantages than passion homicide in concept. Its constituent elements include stimulating, anger, killing on the spot and causal elements, etc. At present, our country lacks intrinsic motivation to reduce the crime of intentional homicide sentenced to death by additional rage killing. Taking into account the extraterritorial legislation is inconsistent, the current judicial practice problem is not prominent, and the requirement of maintaining the principle of balance between crime and punishment, criminal law should not employ legally-prescribed punishment to rage killing according to mitigation and relatively definite statutory. However, in order to improve the legal level of rage killing provisions and ensure that the individual justice, criminal law abstract provisions are appropriate leniently.