论袭警罪基本问题及与期待可能性的联系

On the Basic Issues of the Crime of Attacking the Police and the Relationship with the Anticipated Possibility

袭警罪出台后关于其主客观构成要件以及罪名性质等问题均存在争议。客观上袭警罪的暴力不仅包括对警察人身的直接暴力,还应包括对物和其他能够产生袭警影响的间接暴力且需在警察履行职责的过程中实施。袭警罪作为抽象危险犯,行为应当具有妨碍公务可能的一般危险。行为人构成袭警罪主观上应具有妨害警察执行公务的目的而不包括只针对警察人身进行的袭击行为。此外,袭警罪与期待可能性理论具有关联性,特定情形下行为人可基于期待可能性不构成袭警罪。

After the introduction of the crime of attacking the police,there have been controversies regarding its subjective and objec-tive constituent elements,as well as the nature of the accusation.The violence of assaulting a police officer not only includes direct vio-lence against the police themselves,but also includes indirect violence against objects and other factors that can have an impact on the po-lice oficer,and must be implemented in the process of the police's duties.As an abstract dangerous crime,the crime of assaulting a po-lice oficer should have a general risk of obstructing oficial duties.The perpetrator should have the purpose of obstructing the police of-ficer's performance of official duties subjectively,not including attacks solely targeting the police officer's body.In addition,the crime of attacking the police is related to the theory of anticipated possibility,and in speific circumstances,the perpetrator may not constitute the crime of attacking the police based on the anticipated possibility.