关于强制穿戴宣扬恐怖主义、极端主义服饰及标志罪的认定

Identification of the Crime of Forcing Others to Wear Clothes or Symbols Associated with Terrorism and Extremism

强制穿戴宣扬恐怖主义、极端主义服饰及标志罪是《刑法修正案(九)》增设的一种重要的反恐新罪名。其主观方面只能是直接故意,客观方面表现为强制他人在公共场所穿戴宣扬恐怖主义、极端主义服饰及标志的行为。要准确区分本罪之罪与非罪及其与相关犯罪的界限。本罪无未遂形态问题,存在既遂、预备及预备阶段的中止形态的区分。构成本罪的行为同时又触犯其他罪名的,属于想象竞合犯,应择一重罪处断。

The Crime of Forcing Others to Wear Clothes or Symbols Associated with Terrorism and Extremism is a new addition to the Criminal Law of the People’s Republic of China (Amendment IX). In the subjective respect of this crime, the subjective fault is direct intent;while the objective aspects are manifested in any acts or behaviors of forcing others to wear clothes or symbols associated with terrorism and extremism in a public place by means of violence or coercion. It is necessary to accurately distinguish ‘crime and non-crime’, as well as this crime and related crimes. There is no attempted form with this crime, but there may be distinction between accomplished crime, preparatory crime and suspended crime in the preparatory stage. If the act of this crime constitutes other crimes at the same time, it will constitute imaginative jointer of offenses and should be subject to punishment according to the more serious one.