积极刑法立法观的司法检视与反思——基于组织考试作弊罪158个案例的实证研究

Judicial Review and Reflection on Positive View of Legislation of Criminal Law: An Empirical Study Based on 158 Cases of Organizational Cheating in Examination

积极刑法立法观指导了近年来的刑事立法,组织考试作弊罪的增设便是典型体现。综合评价积极刑法立法观不仅要从刑法教义学角度论证,更需要结合司法实务进行检验。实证研究表明,组织考试作弊罪在司法实践中呈现过度犯罪化趋势,主要表现为既遂标准前置化、考试范围扩大化、两法边界模糊化和量刑情节混乱化。因此,积极刑法立法观无法弥合立法上犯罪化与司法上犯罪化之间的裂隙,也无法与法益理论形成自洽。由此,应在司法中寻找积极刑法立法观的完善出路,明晰组织考试作弊罪“情节恶劣”的入罪标准、量刑原则和确定既遂标准。

The positive view of legislation of criminal law has guided the criminal legislation in recent years. The addition of the crime of organizing cheating in exams is a typical embodiment. The comprehensive evaluation of positive view of legislation of criminal law should not only be demonstrated from the perspective of criminal law teaching, but also needs to be tested in combination with judicial practice. The empirical research shows that the crime of organizing cheating in exams shows a tendency of excessive criminalization in judicial practice, which is mainly manifested by the pre-standardization of accomplished offence, the expansion of examination scope, the blurring of the boundary between laws, and the confusion of sentencing. Therefore, the positive view of legislation of criminal law cannot bridge the gap between the criminalization of the legislation and the criminalization of the judiciary, nor can it form a self-consistency with the legal theory of justice. Therefore, it is necessary to find a perfect way out for the positive view of legislation of criminal law in the judiciary, and clarify the criteria for the serious crime of cheating in exams, the principle of sentencing and the criteria for determining the standards of accomplished offence.