组织考试作弊罪的立法模式与司法适用问题解析

Analysis of the Legislative Mode and Judicial Application of the Crime of Organizing Cheating in Examinations

《刑法修正案(九)》增设了组织考试作弊罪,从近几年的适用情况来看,仍有一些问题需要探讨。组织考试作弊罪采取的是将组织行为实行行为化的立法模式,这一模式具有正当性。但在具体适用时,存在扩张化的倾向,需要对组织行为进行限制解释。具体来说,组织行为本质上是同时具有整合和支配效应的行为类型。司法实践中于组织的认定过于宽泛,应予以纠正。帮助组织作弊行为的规定属于帮助犯的量刑规则,而不应理解成帮助犯的正犯化。

"Criminal Law Amendment(9)" added the crime of organizing examination cheating, which has been applied and implemented for years, but there are still many problems in the application of this crime.The crime of cheating in organizing examinations adopts a legislative model of behavioralization of organizational behavior, and this model has legitimacy.However, when it is applied specifically, there is a tendency to expand, and organizational behavior should be interpreted with restrictions.Specifically, organizational behavior should be a type of behavior that essentially has both integration and dominance effects.The identification of organizations in judicial practice is too broad and should be corrected.Provisions to help organize cheating are the sentencing rules for helping criminals, not the formalization rules for helping criminals.