寻衅滋事罪“口袋化”的思考

Thoughts on the "Pocketization" of the Crime of Provoking Trouble

刑法规定的寻衅滋事罪在理论和实务上都公认为已经逐渐“口袋化”,在罪名“口袋化”能够更好地规制行为的同时,要意识到其对立法体系和司法实践造成的损害。口袋罪的出现是由于立法和司法的双重影响。寻衅滋事罪“口袋化”的现状具体表现为其适用范围扩大、与其他罪名界限不清、网络虚假信息寻衅滋事现象。针对这些现状,为了控制寻衅滋事罪的规制范围,应当坚持刑法谦抑性,慎用刑罚权,明确该罪名在法律体系中的补充性地位,并通过立法和解释手段对其在网络空间的适用进行限制,以求逐步控制“口袋化”现象,使法律规范更加明确具体。

The provisions of the criminal law of the crime in the theory and practice are gradually recognized as "pocket", in charge of "pocket" to better regulate the behavior at the same time, to be aware of the cause of the legislative system and judicial practice of damages. The appearance of pocket crime is due to the dual influence of legislation and judicature. The current situation of "pocketing" of the offence of provocation and trouble is manifested in its widening scope of application, unclear boundaries with other charges, and provocative phenomenon of network false information. In view of these situations, in order to control the scope of regulation of the crime of provoking trouble, we should adhere to the modesty of criminal law, use the penalty power carefully, clarify the complementary status of the crime in the legal system, and restrict its application in cyberspace through legislation and interpretation, in order to gradually control the phenomenon of "pocketing" and make the legal norms more specific.