破坏生产经营罪中“其他方法”的认定

Determination of “Other Methods” in the Crime of Destroying Production and Operation

形式解释论认为本罪的“其他方法”仅包括物理性损害的方法,实质解释论则主张从本罪保护的法益为基点来探究“其他方法”的范围,并认为其他方法包括侵害本罪法益的所有方法。形式解释与实质解释都存在明显不足。形式解释论过于保守,容易导致本罪与现实的脱节,而实质解释论将本罪的适用边界虚化,会引起“口袋化”的风险。准确界定本罪的“其他方法”,应先进行同类解释,再结合本罪保护的法益进行判断和验证。本罪的“其他方法”并非仅限于有形力的毁损,也并非包括例示罪状以外的一切方法,而是指破坏生产经营资料或工具的效用属性的方法。因此“反向刷单”和破坏计算机信息系统的手段可以属于本罪的方法。

The formal interpretation theory believes that the “other methods” of this crime only include methods of physical damage, while the substantive interpretation theory advocates exploring the scope of “other methods” based on the legal interests protected by this crime, and believes that other methods include all methods that infringe on the legal interests of this crime. There are obvious shortcomings in both formal and substantive explanations. The formal interpretive theory is too conservative, which can easily lead to a disconnection between this crime and reality, while the substantive interpretive theory blurs the applicable boundary of this crime, which will lead to the risk of “pocketing”. The accurate definition of “other methods” for this crime should first be interpreted in the same way, and then judged and verified in conjunction with the legal interests protected by this crime. The “other methods” of this crime are not limited to the destruction of tangible force, nor do they include all methods other than the description of the crime, but rather refer to methods that destroy the utility attributes of production and operation materials or tools. Therefore, the means of “reverse brushing” and destroying computer information systems can be considered as methods of this crime.