我国考试刑法的历史溯源及其证成

The Historical Origin and Justification of the Criminal Law in Examination of Our Country

《刑法修正案(九)》颁布实施以来,我国已经形成了考试犯罪的罪名体系,考试刑法的提出有其理论和现实意义。考试刑法具有悠久的历史渊源,从唐代开始对考试作弊适用刑罚,且刑罚适用对象不限于官员。宋代的考试作弊处罚立法较为全面,但处罚较轻。明代的处罚力度较大,但处罚的随意性较强。清代重刑主义色彩浓厚,分类处罚开始出现。虽然在我国古代未能形成独立的考试刑法,但是关于考试作弊的处罚规定对研究考试刑法、规制考试作弊行为仍具有十分重要的意义。考试刑法有其存在的历史渊源和现实制度根基,为以独立的考试制度为前提、以考试法益为保护对象、对违反考试行政法的行为进行强化制裁的刑法规范。

Since the"Criminal Law Amendment(9)"was promulgated and implemented,my country has formed a system of serious crimes in the examination of criminals,and the proposal of the examination of criminal law has its theoretical and practical significance.The criminal law of examinations has a long history.Since the Tang Dynasty,penalties have been applied to cheating in examinations,and the penalties are not limited to officials.The Song Dynasty’s legislation on penalties for cheating in examinations was more comprehensive,but the penalties were lighter.The punishment in Ming Dynasty was relatively strong,but the punishment was relatively arbitrary.In the Qing Dynasty,heavy punishment was strong,and classified punishment began to appear.Although there was no independent criminal law for examinations in ancient my country,the penalties for cheating in examinations are still very important for us to study the criminal law of examinations and regulate examination cheating.Therefore,the examination of criminal law has its historical origin and practical system foundation.The idea of the examination should be based on the premise of an independent examination system,and the legal interests of the examination should be the object of protection,and criminal law norms that strengthen sanctions for violations of the administrative law of the examination.