考试作弊犯罪法律适用问题探究

Probe into the Application of Law on Cheating Crime in Examination

《刑法修正案(九)》增设了考试作弊犯罪的规定,但其适用中存在一些争议。从刑法的谦抑性和体系解释等角度考虑,对"法律规定的国家考试"中的"法律"应作狭义理解;此类犯罪属于行为犯,行为的"完成"不等于作弊行为全部结束,只要考生已经实施了相应的作弊行为就属于犯罪既遂;而且单位可以成为本类犯罪的主体,应增设单位犯罪主体。

The provision concerning the cheating crime in examination,which is added to The Criminal Law Amendmen(t The Nineth),give rise to many disputes over its application. Considering the Principle of Necessity and Systematic Interpretation,the author holds that"law"in"National examinations mandated by law"should be interpreted restrictively.It is also asserted that cheating in examination should be classified into conduct crimes;that is,the offense is accomplished as soon as the examinee carries out the corresponding act.Moreover,supplementing the corporate to the subjects of cheating crime in examination is strongly suggested in the paper since the corporate’s being the subject of the crime is highly potential.