【作者】 杜国强；

【导师】 李??；

【作者基本信息】 武汉大学 ， 刑法学， 2003， 博士

【摘要】 身份犯理论是刑法理论的一个重要组成部分,本文从身份犯的概念入手,对身份犯的本质、身份犯之身份的界定、身份犯的分类以及身份犯的定性与处罚等问题进行了深入研究。在此基础上对我国有关身份犯的立法进行了反思,并提出了完善相关刑事立法的建议。全文除前言外,共分为四章,约19万字。前言:在简要介绍国内外身份犯研究现状的基础上,揭示了身份犯研究的理论意义和实践价值。第一,加强对身份犯的研究有助于繁荣我国的刑法基本理论;第二,加强对身份犯的研究有助于完善我国刑事立法;第三,加强对身份犯的研究有助于正确指导司法实践。第一章,身份犯概述。关于身份犯的概念,中外刑法理论界存在较大的争议,作者在对中外有关身份犯的界定进行比较评析的基础上,提出所谓身份犯是指刑法规定的以行为人所具有的特定身份作为犯罪构成要件或量刑情节的犯罪。身份犯不同于亲手犯和不作为犯,身份犯是以犯罪主体是否具有特定身份为标准对犯罪进行分类的结果,亲手犯则是根据实行行为是否可以与主体相分离对犯罪所作的分类,不作为犯是以行为的表现形式为标准划分的一类犯罪。三者既有区别,又有联系。关于身份犯的本质,在不同的历史时期,统治阶级规定身份犯的着眼点并不相同:在古代刑事立法中,有关身份犯的规定主要表现为公开维护等级特权和宗法制度;而近现代刑法中因身份不同而处罚不同的规定,已经摒弃了古代刑法维护等级特权的内容和立法精神,是从特定身份对行为危害程度的不同影响进行考虑的。但是它们又有个共同之处,即历代统治者之所以在刑法中设立身份犯,其目的都在于通过规定行为人的不同身份对刑事责任之有无及大小的影响,以贯彻其刑事政策和刑法原则,从而更好地维护统治阶级的根本利益。身份犯之身份不同于刑法中身份,刑法中身份是指刑法规定的决定刑事责任有无或大小的特定的个人要素,它既包括主体身份,又包括对象身份;而身份犯之身份仅指犯罪主体的特殊身份,它是指刑法所规定的行为人在实施危害行为所具有的决定身份犯成立以及影响刑罚轻重的个人要素。身份犯之身份除须具备刑法中身份的事实特征和法律特征外,还必须具备对犯罪主体的依附性特征和时间性特征。身份犯之身份也不同于犯罪特殊主体的身份,前者包括作为犯罪构成要件的身份和影响刑罚轻重的身份,后者仅限于作为犯罪构成要件的身份。后更多还原

【Abstract】 The theory of crimes of status is an important part of criminal theories.Starting with the concept of crimes of status, this dissertation lucubrates theessence, the concept of status, sorts and the conviction and punishment of crimesof status. On this basis, the auther reviews the legislations of crimes of status andputs forward some suggestions on perfecting in the legislations. Except for theintroduction, this article consists of four parts, with about 190,000 words.In the introduction, it reveals the theoretical significance and practical valueof study on crimes of status on the basis of a brief introduction of the currentdomestic and foreign researches about crimes of status. Firstly, it helps to boombasic criminal theories of our country. Secondly, it helps to perfect in thelegislation. Thirdly, it helps to guide the judicial practice exactly.Chapter One is about the summarization of crimes of status. There are manycontroversies on the concept of crimes of status in the criminal theoretical circlesin and abroad. Basing on the comparison and analysis of the definition of crimesof status, the author puts forward that crimes of status are a type of crimes whichare stated by the criminal law with the actor’s special status as importantdocuments of criminal constitution or plots to measure the punishment. Crimes ofstatus are different from crimes that can only be committed personally and crimesof nonfeasance. Crimes of status are the result of classifies to crimes according tothe subjects with special status or not, while crimes which can only be committedpersonally is a kind of classify by the standard that actions can be separated fromsubjects or not, and crimes of nonfeasance are a kind of crimes classified by theforms of actions. These three kinds of crimes are different from each other andalso have relationships with each other. As to the essence of crimes of status, thestarting points that the ruling class stipulated such crimes were different duringdifferent period. In the ancient criminal legislations, the regulations of crimes ofstatus were mainly made to maintain grading privileges and patriarchal clansystem, while regulations with different punishments to different status in moderncriminal legislations have spurned the contents and legislating energies stickingup for grading privileges in ancient criminal laws and taken the degree that thespecial status influences harming actions into account. But they have a commonpoint, i.e. the purpose that the ruling class in past dynasties stipulated crimes ofstatus in the criminal law is to carry through their criminal policies and principlesby regulating influence of the actor’s status to criminal responsibility so as tomaintain their ultimate advantages. The status in crimes of status is different fromcriminal status. The latter are special personal factors stipulated by the criminallaw that can determine criminal responsibility, and it contains both the subject’sstatus and object’s status. While the former only contains special status of thesubject, and it is a particular personal factor an actor must have when he iscommitting a crime, and it is regulated by the criminal law because it can decidethe constitution of crimes of status and influence the penalty. Besides factualfeature and legal feature, the status of this crime must have features of adhering tothe subject and timeliness. The status in crimes of status is also different fromspecial status of the subject. The former contains status acted as importantdocuments of crimial constitution or plots to measure the punishment, while thelatter only contains status acted as important documents of crimial constitution.The former includes the latter.Chapter Two is about the theoretical classifies of crimes of status and theirlegislative representation. By analyzing different classifies of crimes of status inthe criminal theoretical circles in and abroad, the author puts forward that crimesof status should be divided into two kinds which contain pure crimes of status andimpure crimes of status. The former is a kind of crimes that are regulated by thecriminal law with special status of the actor as important documents of crimialconstitution, and the latter is a kind of crimes that do not take special status of theactor as important documents of crimial constitution, but as plots to measure thepunishment. The establishing scopes of the two kinds of crimes are different withdifferent legislative modes between the criminal laws in and abroad. In thecriminal law overseas and of Taiwan, crimes with special status that influenceboth criminal quality and penalty are pure crimes of status, while they are impurecrimes of status according to our criminal law. According to the above standard,the author classifies crimes of status according to their behaving forms. They arecrimes committed by State functionarres, crimes of Servicemen’s Transgression ofDuties, crimes committed by those who undertake special professions, crimescommitted by those who have special obligations, crimes committed by personswith particular legal status, crimes committed by persons with special personalstatus and other crimes committed by persons with special status. The author alsoprobes into commonness and individuality of these crimes so as to convict andpunish these crimes correctly during the judicial practice.Chapter Three is about the conviction and penalty of crimes of status, and itdiscusses the question from two sides of committing crimes personally andcimplicity. As to the conviction and penalty of crimes committed personally, theauther points out that both pure crimes of status and impure crimes of statusshould be divided into two instances: the first one, the actor can constitute a crimeas long as he has special status. The second one, the actor with special status canconstitute a crime only when he makes use of his status or under some othercertain conditions. We must make a difference between these two conditions. Asto the conviction and penalty of complicity, the author indicates that as for thecomplicity of pure crimes of status, a person without special status can not onlybecome the abettor and assistant of the person with special status when hecommits a pure crime of status, but also become common actors if he can carryout a part of the implementing action. The point of view that complicity of thecrime of Bribery has been abolished in the current criminal law is incorrect. As tothe conviction and penalty of complicity of a person without special status and aperson with special status, the author suggests using the alien theory of complicityfor reference and leading to the theory of partly complicity, i.e. as a principle, theestablishment of complicity must accord with a common constitution, but whenover two actors’ common behaviors have superposition in the subjective andobjective aspect, they can form complicity on the superposing part. We can handlethem differently to different situations. As to the conviction of a person withspecial status abetting or helping a person without special status to commit a purecrime of status, it should be divided into two instances. The first one, during thesituation that a man with special status abets or helps one without special status tocommit a crime the latter can’t carry it out personally, if the former’s status is usedin the crime and the latter also joins in a part of implementing conduct, theybecome common implementing criminals. Otherwise the man with special statusbecome indrect implementing criminal, and the man without special status isinnocent. The second is the situation that a man with special status abets or helpsone without special status to commit a crime the latter can carry it out personally,and we should also cope with it according to the situation whether the man withspecial status make use of his status and the man without special status knows itor not. Under the circumstance that two men with different status commit a purecrime of status together, we can also lead to the theory of partly complicity to dealwith it. When two men have conspired to commit a crime together with each onetaking advantage of his own position, without taking advantage of the other’soffice, we should convict them separately. If they not only use their own position,but also need the other’s position to support them, they should be convictedaccording to the more serious crime. If the law has stipulated their common actsas two different crimes, they should be convicted separately. As to the complicityof impure crimes of status, the author mainly probes into the conviction andpunishment of the complicity of impure crimes of status with special status thatinfluences both criminal quality and penalty in alien criminal law. Under thecircumstance that a person without special status joins a person with special statusin the impure crimes of status, both the theory of convict differently and convict incommon in alien theories have some limitations, and it owns to the legislation.The author suggests that first of all they should form complicity on the basicdocuments of criminal constitution, and then convict the person with special statusas the crime of status. As to a person with special status joins a person withoutspecial status in the impure crimes of status, the person without special statusshould be convicted as the actor of common crimes, while the person with specialstatus should be convicted as complicity of crimes of status.Chapter four is about the review and perfection of crimes of status regulatedin the Criminal law. The author analyses the regulations of specific crimes andcomplicity about crimes of status in the current criminal law and points out thatthere are many defects and they should be perfected. The perfection of purecrimes of status is as follows: The first one, amend the facts and legal penalties ofresemble crimes so that they are in correspondence with each other. The secondone, delete repeated articles in the criminal law to maintain briefness of the law.The third one, increase legal penalties of crimes committed by state functionaries,and add penalty of property and qualification to them. The fourth one, adjust thecontent of current crimes of status to ensure the scientific nature of criminallegislation. The perfection of impure crimes of status is as follows: The first,construct constitutions of some crimes again to make them accord with logicalstructures of impure crimes of status. The second one, add regulations that anystate functionary should be punished severely if he commits an impure crime ofstatus by taking advantage of his position. The third one, broaden the punishmentto criminals under age. Meanwhile we should add other new articles of crimes ofstatus in the criminal law. As to the complicity of crimes of status, we should usealien legislations for reference and stipulate them in the criminal law as follows: Ifa man without special status joins in a crime with special status as importantdocuments of criminal constitution, he should be convicted as the complicity ofthe crime, but his punishment should be lightened. The penalty that is lightened orweighened or immuned because of the actor’s special status can only be applied tothe man with this status. By this way it can guide conviction and punishment ofcomplicity of crimes of status.更多还原