替考入刑的合理界限

The Reasonable Bounds of Taking Surrogate Exam-taking into Criminal Punishment

《中华人民共和国刑法修正案(九)》增设了代替考试罪,为规制替考行为提供了明确的刑法依据。与刑法规定的其他犯罪相比,代替考试罪的社会危害性有限,在适用时应当予以必要的限制,以保证宽严相济刑事政策的贯彻。从范围上看,替考入刑仅限于"法律规定的国家考试",即这种国家考试的设定必须基于全国人大及其常委会;从行为方式上看,代替考试罪中的替考行为应限于"代替他人参加考试",而不应当包括"让他人代替自己参加考试";从主观方面上看,替考者应当具有"为他人"参加考试的意图;在刑罚的适用上,则需要区别对待,尽量轻缓。

The crime of surrogate exam-taking was set up in“Amendment(IX)to the Criminal Law”.It provides clear criminal law basis for the regulation of surrogate exam-taking.Compared with other crimes stipulated by the criminal law,the crime of surrogate exam-taking would not inflict much damage to the society.The criminal punishment must be restricted in order to embody the policy of combining punishment with leniency.Taking surrogate exam-taking into criminal punishment should be limited within the scope of“national exam prescribed by law.”It means this exam is set up by NPC and its standing committee.Its behavior includes replacing others to exam but not include being replaced by others.The one who takes surrogate exam must have intention to exam for the benefit of others.As for criminal punishment,this behavior should be treated differently,and be given a punishment as lighter as possible.