论暴行罪与伤害罪

On Crime of Atrocity and Crime of Injury

暴行罪与伤害罪都是以他人的身体作为保护法益的犯罪,一般认为,暴力是针对他人身体实施有形力(物理力),伤害是对他人的生理机能的侵害。可以从是否需要有身体的接触、是否需要有伤害的危险性这两个角度探讨作为暴行罪之"暴力"的界限;是否成立暴行罪,很多时候取决于刑法在多大范围内保护人的身体性利益更为合适这种价值判断。探讨是否成立伤害罪,需要有意识地区分作为故意犯罪的伤害罪与作为暴行罪之结果加重犯的伤害罪,前者以存在伤害罪的故意为必要,但后者只要存在暴行罪的故意即可。刑法对伤害罪的实行行为并无限制,由暴力行为之外的其他手段造成伤害结果的,也可以成立伤害罪,但有必要慎重判断是否存在实行行为。

Both atrocity crimes and injury crimes are offenses involving the body of others as the legal interests for protection.It is generally believed that violence is the use of tangible force(physical force) against the body of another person,and injury is an infringement of the physiological function of another person.The limits of "violence" in atrocity crimes can be explored from the two perspectives of whether physical contact is required and whether there is a danger of harm;whether atrocity crimes are established or not depends in many cases on the extent to which the criminal law protects the interests concerning human body in a more appropriate way.To explore whether the crime of injury is established,it is necessary to consciously distinguish between the crime of injury that is an intentional crime and the crime of injury that is aggravated as a result of atrocity crime.The criminal law has no restrictions on the execution of the crime of injury.If the result of the injury is caused by the means other than violent behavior,the crime of injury can also be established,but it is necessary to carefully judge whether there is a real act of execution.