试析打击报复证人罪的根基

On The Foundation of the Crime of Retaliation against Witnesses

打击报复证人罪不完全属于单靠国家意志推动就能设立的罪名,其设立还具有坚实的自然根基和社会根基。目前打击报复证人罪的司法适用并没有完全遵循这些根基延伸出的逻辑和经验,导致罪名适用出现刑罚轻重失衡、保护法益和对象出现不当扩张,有悖于罪刑法定原则。为确保个案办理时国家意志与国民欲求能够在感性认识层面形成共识,当前打击报复证人罪的司法适用可适当增强严厉程度,同时不宜扩张至诉讼范畴之外。

The crime of retaliation against witnesses is not a crime that can be established only by the will of the state,but has a solid natural and social foundation.At present,the judicial application of the crime of retaliation against witnesses does not fully follow the logic and experience extended from these foundations,resulting in the imbalance of punishment and the improper expansion of the protection of legal interests and objects in the application of charges,which is contrary to the principle of a legally prescribed punishment for a specified crime.In order to ensure that the state will and citizens’emotions can form a consensus at the perceptual level,the current judicial application of the crime of retaliation against witnesses can be appropriately enhanced in severity,and should not be expanded beyond the category of litigation.