暴行入罪及其规范适用

Criminalization of Atrocities and Its Normative Application

由于故意伤害罪对暴力侵害行为存在规制漏洞,以及寻衅滋事罪的保护法益为社会秩序而非人身安全,故当前立法对个体暴力侵害行为的规制仍存在不足。以日本立法为参照,认为增设暴行罪并加以规范适用是有效完善公民人身权利保障的刑事法治方案。暴行罪的立法,主要涉及罪名、罪状设计和法定刑配置;暴行罪的规范适用,主要涉及构成要件释义、本罪与他罪的界分以及本罪与行政违法的界分。

Since the crime of intentional injury has loopholes in the regulation of violent acts and the crime of provocation protects the legal interest of social order rather than personal safety, the current legislation is still inadequate in regulating individual violent acts. Taking the Japanese legislation as a reference, we believe that the creation and regulation of the crime of atrocity is an effective solution to improve the protection of citizens’ personal rights under the criminal law. The legislation of the crime of atrocity is mainly related to the name of the crime, the design of the crime and the configuration of the legal penalty. The regulation and application of the crime of atrocity is mainly related to the interpretation of the constituent elements, the distinction between this crime and other crimes, and the distinction between this crime and administrative violations.