刑法中的止害损失研究

Study on Losses of Stopping Infringement in Criminal Law

刑事司法实践中对于止害损失的处理,存在着因司法解释性规定的内容各行其是、明确性和操作性不强等而造成的混乱现象。止害损失由犯罪行为引发,理应纳入定罪量刑要素予以考量,但在适用中亦存在诸多问题,如行为人对于止害损失的非可控性使得其可责性和非难性易受到质疑,止害损失的非确定性与犯罪危害后果明确性的要求存在冲突,止害损失成因的复杂性决定了将不同层次止害损失进行定罪量刑上的同等处置有失公平。对于止害损失的司法处理,应以法益保护和权利保障兼顾为导向,确立止害损失的间接经济损失排除原则,止害损失的数额鉴定、非重复性评价、适当性评判等认定合理性原则以及行为人对止害损失的认识可能性原则。

There is a confusion in criminal justice practice caused by conflicting contents,lack of clarity and weak operability of judicial interpretation in the process of dealing with losses caused by stopping infringement. The losses of stopping infringement are caused by criminal acts,therefore should be included in the elements of conviction and sentencing. But there are also many problems in its application. The non-controllability of offender to losses of stopping infringement makes its accountability and responsibility questionable. There are conflicts between the uncertainty of losses of stopping infringement and the clear requirement of the harmful criminal consequence. Complicated causes of losses of stopping infringement determines that it is unfair to make the same treatment to different losses of stopping infringement in conviction and sentencing. The judicial treatment to losses of stopping infringement should be oriented by both legal interest protection and right protection,and some principles should be established. These principles include the principle of excluding indirect economic losses in losses of stopping infringement,the principles of reasonableness about losses of stopping infringement which consist of the principle of identification of losses,non-repeatability evaluation of losses and appropriateness of losses,and the principle of offender’s possible awareness to losses of stopping infringement.