我国轻罪刑事制裁研究——以W市T区人民法院143份危险驾驶罪判决书为例

Research on Criminal Sanctions for Misdemeanors in China—Taking the 143 Cases of the Crime of Dangerous Driving in the T District People’s Court of W City as an Example

近年来,我国为了应对社会转型期的各类新型风险,提倡“治小罪而防大罪”的犯罪治理策略,通过不断增设新罪名、降低犯罪门槛、扩大犯罪圈来满足国民对安全的需求。在积极刑法观主导下,我国刑事法网向“严而不厉”的一元化制裁结构发展,轻微违法行为面临如何出罪的法治难题。一方面,这是现代风险社会刑法立法不可逆的样态。另一方面,较多的轻罪被纳入刑法,加剧刑事立法轻罪化与刑事制裁重刑化之间的矛盾。因此,对于轻罪刑事制裁的研究须提上日程,方能兼容我国的社会形势和法治建设的需要。本文第一部分是梳理国内外不同视域下的轻罪概念的界定。第二部分是选取轻罪中较为典型的“醉驾入刑”案例进行实证数据分析,分别从被告人的人身危险性、危害结果性以及刑事制裁方面分析目前我国轻罪刑事制裁的失范现状的原因,并对其进行反思。第三部分从刑事立法方面和刑事司法方面分别提出治理建议。

In recent years, in order to cope with various new risks in the period of social transition, China has advocated a crime governance strategy of “curing minor crimes and preventing major crimes”, and has continuously added new crimes, lowered the threshold for crime, and expanded the criminal circle to meet the needs of the people for security. Under the guidance of the positive concept of criminal law, China’s criminal law network has developed towards a “strict but not severe” unified sanction structure, and minor violations are facing the problem of how to convict minor violations. On the one hand, this is an irreversible state of criminal law legislation in a modern risk society. On the other hand, a relatively large number of misdemeanors have been incorporated into the criminal law, which has exacerbated the contradiction between the criminalization of criminal legislation and the criminalization of criminal sanctions. Therefore, the study of criminal sanctions for misde-meanors must be put on the agenda in order to meet the needs of China’s social situation and the construction of the rule of law. The first part of this paper is to sort out the definition of the concept of misdemeanor from different perspectives at home and abroad. The second part is to select the typical cases of “drunk driving and criminalization” in misdemeanors for empirical data analysis, analyze the reasons for the current anomie of criminal sanctions for misdemeanors in China from the aspects of personal dangerousness, harmful consequences and criminal sanctions, and reflect on them. The third part makes governance recommendations from the aspects of criminal legislation and the aspects of criminal justice.