我国情节犯立法的随意性与规范化--以不纯正情节犯为视角

The Arbitrariness and Standardization of The Legislation of Plot Crime in China: From The Perspective of Impure Plot Crime

所谓情节犯是指刑法分则明确规定的,以“情节严重”或“情节恶劣”作为犯罪成立必备要件的犯罪类型。情节犯乃我国刑事立法之特色,但现行情节犯立法随意性问题突出。即使是具有条文相对明确性优势的不纯正情节犯也难逃随意性弊病的宿命,表现在设置随意,“和”与“或”型区分随意,“或”型并列要素选择随意,以及数额并列类“或”型情节解释随意。究其原因,乃情节犯立法之立场不清所致。考虑到充抵风险刑法侵蚀的需要,建议以限缩犯罪圈为立场,从体系化的视角出发,采取针对性的措施,规范现行情节犯立法。

The so-called plot crime refers to the crime type which is clearly stipulated by the specific provisions of criminal law and takes "serious" or "bad" as the necessary elements for the establishment of a crime. The plot crime is the characteristic of criminal legislation in our country, but the randomness of legislation of plot crime is very prominent. Even the impure plot offence with the relative definiteness advantage can not escape the fate of the arbitrary malady, which is manifested in the arbitrary setting, the arbitrary distinction between "and" and "or" type, the arbitrary selection of parallel elements of "or" type, and the arbitrary explanation of the "or" type. The reason is that the legislative position of plot crime is not clear. In view of the need to offset the erosion of risk criminal law. It is suggested to take targeted measures to regulate the current crime legislation from the perspective of systematization in order to limit the crime circle.