袭警罪限缩适用研究

Research on Restrictive Application of the Crime of Assaulting Police

自《刑法修正案(十一)》出台以来,涉及袭警罪的案件数量激增,司法实践中对于袭警罪构成要件的理解仍存在较大争议。通过实证研究发现,袭警罪的适用存在泛化问题,且出现了同案不同判的情况。为了加强人民警察执法的权威性和正当性,实现和谐的警民关系,同时防止袭警罪成为“口袋罪”,应当对袭警罪的适用进行合理限缩。袭警罪的保护法益应当仅包括警察的执法权,而不包括警察的人身安全;袭警罪中的“暴力”应达到警察轻微伤及以上的程度;行为人实施的直接针对物而间接伤害警察人身的暴力行为属于袭警罪中的暴力;对正在依法执行职务中“正在”的理解应结合警察公务的关联行为进行实质认定。

Since the introduction of the Amendment(Ⅺ)to the Criminal Law,the number crimes of assaulting police has surged,and there is still considerable controversy in judicial practice regarding the understanding of the constitutive elements of this crime.Empirical research has found that there is a problem of generalization in the application of the crime of assaulting police,and there are instances of inconsistent verdicts in similar cases.In order to strengthen the authority and legitimacy of law enforcement by the police,achieve harmonious relations between the police and the public,and prevent the crime of assaulting police from becoming a"catch-all crime,"it is necessary to reasonably restrict the application of this crime.The legal interests protected by the crime of assaulting police should only include the police's enforcement power,and not the personal safety.The violence in the crime should reach the level of causing minor injuries or more serious injuries to the police.Violent acts committed by the perpetrator that are directly aimed at objects but indirectly harm the police officer's person constitute violence in the crime of assaulting police.The understanding of"performing"in the context of"performing duties according to law"should be substantively determined by considering the related acts of police service.