论交通冲卡行为的刑法适用

Application of Criminal Law to Dashing through Traffic Checkpoints

对于以交警为行为对象的交通冲卡行为,判例基本上适用了妨害公务罪或袭警罪。袭警罪的保护法益为人民警察的公务执行,其构成要件中的“暴力袭击”仅指直接暴力,通过对警察造成一定程度的人身危险以严重阻碍公务执行。以此为基础,可将冲卡行为区分为单纯冲卡、主动介入型冲卡与被动介入型冲卡。单纯冲卡既不符合“袭击”文义,也未严重阻碍交警的公务执行,不构成犯罪。主动介入型冲卡符合“袭击”文义,在对交警造成人身危险时严重阻碍了公务执行,构成袭警罪。被动介入型冲卡符合“以暴力方法阻碍”文义,也在造成人身危险的同时阻碍了公务执行,构成妨害公务罪。当被动介入型冲卡可能成立妨害公务罪时,在责任故意的判断上,要求行为人认识到其冲卡行为对交警的公务执行造成了一定程度的阻碍,否则可构成责任阻却。

For the behavior of dashing through traffic checkpoints targeting traffic police,the precedent basically applies to the crime of obstructing official duties or the crime of assaulting police.The crime of assaulting police is intended to protect the legal interests of police officers in the perfor⁃mance of their official duties.The term“violent assault”in its constitutive elements refers only to di⁃rect violence,which seriously hinders the execution of official duties by causing a certain degree of personal danger to the police.On this basis,the behavior of dashing through traffic checkpoints can be divided into simple dashing,active interventional dashing and passive interventional dashing.Sim⁃ple dashing neither meets the meaning of“assault”,nor does it seriously hinder the official execution of traffic police,and therefore it does not constitute a crime.Active interventional dashing conforms to the meaning of“assault”in that it seriously obstructs the official execution of the traffic police while posing a personal danger to the police,thus constituting the crime of assaulting police.Passive interventional dashing conforms to the meaning of“obstructing by violent means”,and it also causes personal danger while obstructing the execution of official duties,thus constituting the crime of ob⁃structing official duties.When passive interventional dashing may establish the crime of obstructing of⁃ficial duties,in the judgment of the intent of liability,the actor is required to recognize that his or her dashing behavior has caused a certain degree of obstruction to the execution of official duties by traffic police,otherwise the behavior may constitute a liability obstruction.