中国式加重犯中止问题的“一揽子”探讨

A Package Discussion on the Suspension of Chinese Aggravated Crime

加重犯也可能存在犯罪中止。中止加重结果(或者要素)而完成基本犯行为和结果、发生加重结果(或者要素)后中止基本犯结果,以及同时中止加重结果(或者要素)与基本犯结果的,均可能成立加重犯的中止。形成危险状态后行为人主动消除危险避免(严重)实害的,成立危险犯的中止,应在危险犯的基本犯法定刑基础上免除或者减轻处罚;故意的结果加重犯,存在中止加重结果、中止基本犯结果与同时中止加重结果与基本犯结果3种加重犯中止的情形;对于过失的结果加重犯,存在发生加重结果而中止基本犯结果的加重犯中止的情形;结合犯,通常也存在3种加重犯中止的情形;对于财产数额加重犯、对象加重犯、场所加重犯、手段(方式)加重犯,行为人主动放弃对数额(特别)巨大财物、特殊对象、在特定场所、以特定手段或方式实施犯罪的,就可能成立相应加重犯的中止;除此之外,情节加重犯也有成立中止的余地;而后果加重犯、作用(地位)加重犯、多人(次)加重犯,只有成立与否的问题,不存在加重犯中止的情形。对于加重犯中止,应按照中止犯处罚规定免除或者减轻处罚,考虑到我国法定刑偏重,发生加重结果但中止基本犯结果的,也应考虑减轻处罚。若同时成立既遂的重罪的,则需要与减轻处罚结果进行比较,从一重处罚。

There may be suspension of crime in aggravated offenses.The completion of basic offenses with basis results without aggravated results(or elements),suspension of basic offenses after aggregated results(or elements)occur,and the suspension of the aggravated result(or element)and the basic crime result at the same time may constitute the suspension of the aggravated crime.If the offender takes the initiative to eliminate danger and avoid(serious)real harm after creating a dangerous scenario,he actually suspends the dangerous crime.He should be exempted or mitigated from penalty on the basis of basic criminal law of dangerous crime.In the case of intentional consequential aggravated crime,there may be three kinds of suspension of aggregated crime:suspension of aggravated result,suspension of basic crime result,and simultaneous suspension of aggravated result and basic crime result.In the case of aggravated consequential offense of negligence,there may be suspension of aggravated crime whose result is aggravated but the result of basic crime is suspended.In the case of joint offense,there are usually three kinds of suspension of aggregated crime.In the case of the aggravated crimes related to the amount of property,victim,location and means of crime,if the offender voluntarily gives up a substantial amount of property,a specific victim,a specific location,or a specific means of crime,his behavior may be regarded as the suspension of the aggravated crime.In addition,serious offenses may also be suspended.When it comes to aggregated crime of consequence,aggregated crime of function(status),aggregated crime of multiple people(times),there is only the question of whether the charged are convicted or not,and thus there is no suspension of crime in this case.The suspension of aggravated crime should be exempted or mitigated from penalty according to the provisions of suspension of crime.In view of our country’s heavy legal penalty,we should also consider mitigating penalty if the result of aggravated crime occurs but the result of basic crime is suspended.If the offender is convicted of an accomplished felony at the same time,we need to refer to the result of the mitigated punishment and give him a heavier penalty.