公共法益视域下的高空抛物罪边界

The Crime Boundary of Throwing Objects from High Altitude under the View of Public Legal Interests

《刑法修正案(十一)》增设的高空抛物罪为扰乱公共秩序类犯罪,与先前的司法解释将此类行为视为危害公共安全犯罪不同,且该条文对犯罪成立条件的叙明较为模糊,导致实践中存在对高空抛物行为适用罪名混乱的状况。明确公共秩序法益与公共安全法益间保护维度不同、前者为后者之屏障的关系,厘清构成要件中“高空”“抛物”等要素内涵,才能解决高空抛物行为定罪不当的问题。

The crime of throwing objects from high altitude added in the Amendment to Criminal Law(11)is a crime of disturbing public order,which is different from the previous judicial interpretation that regards such acts as crimes of endangering public security,and the provisions of the crime are relatively vague in clarifying the conditions for the establishment of the crime,leading to the confusion of the application of throwing objects from high altitude in practice.It should be clear that the protection dimensions are different between the legal interests of public order and the legal interests of public security,the former is the barrier of the latter.And only by clarifying the connotation of elements such as"high altitude"and"throwing",can we solve the problem of improper conviction of throwing behavior at high altitude.