刑法中财产损失与人员伤亡后果并列与分别规定之利弊分析

Analysis of Prescribing Property Loss and Casualty Appositionally or Respectively in Criminal Law:Advantages and Disadvantages

在我国刑法中 ,经常有财产损失与人员伤亡并列作为某种法定刑适用对象的情况。这样的立法规定是不合理的。其不合理性主要表现在 :虽然在无穷的犯罪具体损害形态与有限的几种刑罚之间对应靠的是社会价值的调整 ,但在现代社会凸显人之生命价值的观念下 ,人的生命无论如何也难于与财产损失相对等 ;将财产损失与人员伤亡相并列作为适用死刑与自由刑相并列之法定刑的依据 ,具有实质的不合理性。因此 ,财产损失与人员伤亡不能适用相同的法定刑 ,而应分别规定。为了使这样的分别规定具有合理性 ,在法定刑之不同罪刑阶段之间应该采用交叉式而不是衔接式。

The apposition of property loss and casualty often appeared in the criminal law of China as a situation of the objects to which certain statutory punishment applied. Such kind of legislative regulations are unreasonable. The unreasonableness manifests that there is adjustment of social value between the unlimited criminal concrete modalities of damage and several kinds of punishments, but it's really hard to make the life of human being equivalent with property loss in the modern society where the value of the human life has been given prominence. It is substantially unreasonable that taking the apposition of property loss and casualty as the basis for the statutory sentences of the apposition of death penalty and punishment against freedom. Therefore, property loss and casualty should not apply the same statutory sentences, but be prescribed respectively. In order to make such kind of provisions reasonable, the style of chiasms but not the style of link should be adopted between the periods of different crimes of statutory sentences.