【作者】 王喆；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 法律（法学）（专业学位）， 2022， 硕士

【摘要】 袭警罪作为《刑法修正案(十一)》出台后新增的热点罪名,一直备受人们关注。近年来人民警察在执行职务中遭受暴力袭击以至于受伤甚至牺牲的案件不断发生,让人们对袭警罪寄予了厚望,希望袭警罪能发挥其应有的作用。实践中,袭警罪也确实成为了打击袭警行为、保障人民警察人身安全的重要手段,但袭警罪作为新生罪名在适用中依然缺少明确指引,因此通过梳理分析有关袭警罪的判决,找出其中问题并提出建议是优化本罪适用的有效途径。通过对有关裁判文书的地域分布特点、审判层级以及审判形式的特点、刑期与刑种分布特点以及被告人行为方式的重要种类这几个角度进行梳理分析后,袭警罪司法适用的问题在于:对袭警罪的暴力袭击行为认定不清、袭警行为的行刑衔接不当、袭警罪的刑法溯及力以及与妨害公务罪的竞合关系仍需明确。而为了优化袭警罪的司法适用,针对上述问题应当明确袭警罪暴力袭击的“暴力”应是狭义的暴力、以量的差异说界分袭警罪与一般行政违法、明确袭警罪的刑法溯及力以及其与妨害公务罪是法条竞合关系。袭警罪的暴力袭击应属于狭义的暴力,是直接作用于人身的有形力,这符合对袭警罪中暴力的文义解释,也更能体现出袭警罪的体系层次,并且也是袭警罪的保护法益所要求的。以量的差异说界分袭警罪与一般行政违法,根据行为人实施行为的“量”来把握该行为属于袭警罪还是一般行政违法,这有利于维护法秩序的统一,在实务中通过把握行为人的行为方式、行为程度以及造成后果等“量”的方面来进行认定也会减少实务操作难度。应当明确袭警罪的刑法溯及力问题,袭警罪的基本法定刑与妨害公务罪一致,而原暴力袭警条款却是在此基础上加重处罚,因此根据“从旧兼从轻”原则新发生的袭警行为应适用袭警罪罪名,而袭警罪相较于妨害公务罪多出了暴力袭击人民警察的要素,所以二者是法条竞合的关系并存在适用层级。更多还原

【Abstract】 The crime of assault against a police officer,as a new hot charge after the amendment of Criminal Law(11),has been attracting people’s attention.In recent years,the people’s police have been injured or even sacrificed in the course of carrying out their duties,which makes people place high hopes on the crime of assault against a police officer,hoping that the crime of assault against a police officer can play its due role.In practice,the crime of assault against a police officer has indeed become an important means of cracking down on the behavior of assaulting police to ensure the personal safety of the people’s police.However,as a new crime,there is still a lack of clear guidance in the application of the crime of assault against a police officer.Therefore,it is an effective way to optimize the application of the crime by sorting out and analyzing the judgment of assaulting police and finding out the problems and putting forward suggestions.After combing and analyzing the regional distribution characteristics of relevant judicial documents,the characteristics of the trial level and the trial form,the distribution characteristics of the term of sentence and the type of punishment,and the important types of the defendant’s behavior,The problem of judicial application of the crime of assault against a police officer lies in:The criminal law retroactivity of the crime of assault against a police officer and the relationship between the crime of assault against a police officer and the crime of obstructing official duties still need to be clarified.In order to optimize the judicial application of the crime of assault against a police officer,it should be clear that the violence of the crime of assault against a police officer should be violence in a narrow sense,that the crime of assault against a police officer should be separated from the general administrative illegal law according to the difference in quantity,that the criminal law retroactivity of the crime of assault against a police officer,and that the retroactivity of the crime of assault against a police officer and its relationship with the crime of obstructing public affairs are the overlap of articles of law.The violent attack of the crime of assault against a police officer should belong to the narrow sense of violence,which is a tangible force directly acting on the person,which conforms to the literal interpretation of violence in the crime of assault against a police officer,and can better reflect the system level of the crime of assault against a police officer,and is also required by the law interests of assaulting the police.Divide the crime of assault against a police officer and the general administrative law according to the difference of quantity.Grasp whether the behavior belongs to the crime of assault against a police officer or the general administrative law according to the "quantity" of the behavior implemented by the perpetrator,which is conducive to maintaining the unity of legal order.In practice,identifying by grasping the "quantity" of the perpetrator’s behavior mode,behavior process and consequences will also reduce the difficulty of practical operation.The retroactivity of the criminal law of the crime of assault against a police officer should be clear.The basic legal punishment of the crime of assault against a police officer is consistent with the crime of obstructing public affairs,and the original provision of violent assaulting the police is to increase the punishment on this basis.Therefore,according to the principle of "observing old laws and light punishment",the new act of assaulting the police should be applicable to the crime of assault against a police officer,and the crime of assaulting the police has more elements of violent assaulting the people’s police than the crime of obstructing public affairs,so the two are the relationship of overlap of articles of law and there are applicable levels.更多还原