危害国防利益罪适用中的竞合问题

Concurrence in the application of Crimes of Imparing the Interests of National Defence

在立法和司法上未能正确处理有关竞合问题,是新刑法首次确立的危害国防利益的犯罪罪名在一些地方很少适用的一个原因。正确处理危害国防利益罪涉及的"包含竞合"应坚持"特别法优于普通法"的司法适用原则;正确处理危害国防利益罪涉及的"交叉竞合"应在司法中适用"法益保护的完整性"原则;正确处理危害国防利益罪涉及的"并列竞合"有赖于刑法的修正或相关司法解释。只有做到这些,才能充分体现刑法单独规定危害国防利益罪的应有价值。

The reason why few defendants have been charged with or convinced of the Crimes of Impairing the Interests of National Defence since this kind of crimes were established for the first time in the new criminal code is that the alternative relation between the Crimes of Impairing the Interests of National Defence and other kinds of crimes has not been considerated properly. The right way to settle the problem of 'containing relation between crimes' should be adherence to the principle of 'special law has priority to general law'; to settle the problem of 'overlap relation between crimes' should be adherence to the principle of 'thorough protection of interests of law'; to settle the problem of 'parallel relation between crimes' should be relying on modifying or interpretation of the criminal code.