《反有组织犯罪法》下软暴力的意涵解读与规范性限缩

Interpretation and Normative Limits of Soft Violence under Anti-Organized Crime Act

软暴力虽然通过司法解释续造的方式进入到了刑法体系当中,但其内涵依旧含糊不清,其与刑法现有相关概念间的关系亟待理顺。通过分析《反有组织犯罪法》的最新规定,可以明确软暴力彻底摆脱了与有形暴力间的关联,能够独立成为有组织犯罪的犯罪手段。基于概念创制的实际功用,可以得知软暴力既不是包含了威胁的上位概念,也不能与威胁等同视之,而是一种威胁所通告的恶害。软暴力作为类型化思维的产物,要想进入规范性概念的行列还为时尚早,目前仅能将其作为一种类型来加以把握,掌握其“能够产生心理强制力的滋扰”这一核心特征。在刑法的规范体系中,要想更好地发挥软暴力这一类型对司法机关的提示作用,则需要对其现有意涵进行限缩。具体而言,既需要将刑法已有的行为类型排除在软暴力的意涵之外,也需要依据其核心特征建构规范性的限缩规则。

Although soft violence has entered the criminal law system by way of judicial interpretation, its connotation is still ambiguous, and its relationship with the existing concepts of criminal law needs to be clarified. By analyzing the latest provisions of the Anti-Organized Crime Act, it is clear that soft violence is completely free from the association with physical violence and can become an independent criminal means of organized crime. Based on the practical function of the concept creation, it is clear that soft violence is neither a superior concept that includes threats, nor can it be regarded as the same as threats, but a kind of evil that is informed by threats. As a product of typological thinking, it is still too early to enter the ranks of normative concepts, and at present it can only be grasped as a type, grasping its core characteristic of “nuisance capable of producing psychological coercion”. In the normative system of criminal law, in order to better play the role of soft violence as a type of reminder to the judiciary, it is necessary to limit its existing meaning. Specifically, it is necessary to exclude the existing types of conduct from the meaning of soft violence, and also to construct normative restriction rules based on its core characteristics.