论轻罪标准的重构

On the Reconstruction of the Criteria for Minor Crimes

轻罪作为当代刑法研究的重要问题,对于其标准的界定存在不同的观点。从大陆法系来看,将犯罪根据法定刑的高低区分为不同层次的轻罪重罪等是普遍采取的做法;而英美法系在法定刑做出区分之外还确定了部分犯罪的属性。在我国学界,针对应当适用法定刑抑或是宣告刑存在有不同的声音,而对于具体的区分刑期也存在一定的争论。本文认为,对于界定标准的区分,并非必须采用单一标准进行界定。轻罪的区分标准可以从刑法本身的规定,即法定刑的角度分析;从宣告刑,即当事人的行为角度分析;也可以从具体犯罪所侵犯的法益角度分析。由此,笔者试图构建以最高法定刑为三年有期徒刑作为基础,将三年有期徒刑以内的宣告刑作为补充,并将部分特殊的犯罪作为特例的多元化轻罪标准。

Minor crimes, as an important issue in contemporary criminal law research, have various perspectives regarding the criteria for their definition. From the perspective of the civil law system, it is a common practice to distinguish crimes into different levels such as minor and serious crimes based on the severity of the statutory penalties;whereas, in the Anglo-American legal system, distinctions are made not only based on statutory penalties but also by defining the nature of certain crimes. In the academic circles of our country, there are differing opinions on whether to apply statutory penalties or pronounced penalties, and there is also debate over the specific differentiation of sentence terms. This article believes that in defining standards, it is not necessary to adhere to a single criterion. The criteria for distinguishing minor crimes can be analyzed from the perspective of the statutory penalties set forth by the criminal law itself;from the pronounced penalties, that is, the angle of the individual’s actions;and also from the perspective of the legal interests infringed by the specific crime. Thus, the author attempts to construct a diversified standard for minor crimes that is based on a maximum statutory penalty of three years in prison, supplemented by pronounced penalties within three years, and with certain special crimes as exceptions.