暴力袭警从重处罚条款的法律适用

发布时间：2018-08-05 19:27

【摘要】：《中华人民共和国刑法修正案(九)》在妨害公务罪中新增暴力袭警从重处罚条款,该款适用中存在三个方面的争议,即人民警察的范围界定,职务行为及其合法性的认定,暴力的形式和程度限制。人民警察不包括辅警,暴力袭击辅警原则上不适用从重处罚条款,但对正在配合警察执法的辅警实施暴力袭击应从重处罚。此外,“依法执行职务”是构成妨害公务罪及适用从重处罚条款的前提,认定时既要审查人民警察职务行为内容的合法性,亦要审查其程序的合法性。另外,妨害公务罪从重处罚条款中所规定的“暴力”,形式与程度应以足以阻碍人民警察执行职务为界限。
[Abstract]:An amendment to the Criminal Law of the people's Republic of China (9) adds a new provision of severe punishment for violent assault on police officers in the crime of obstruction of official duties. There are three controversies in the application of this section, namely, the definition of the scope of the people's police, the determination of their duties and their legality, Restrictions on the form and extent of violence. The people's police do not include the auxiliary police, the violence attack auxiliary police does not apply the heavy punishment clause in principle, but carries on the violent attack to the auxiliary police who is cooperating with the police law enforcement should take the heavier punishment. In addition, "performing duties according to law" is the premise of the crime of impairing official duties and the application of the heavier punishment clause. In the determination, we should not only examine the legality of the contents of the duties of the people's police, but also the legality of its procedures. In addition, the form and degree of "violence" stipulated in the heavier penalty clause of the offence of obstruction of public service should be limited to a degree sufficient to obstruct the people's police in the performance of their duties.
【作者单位】：天津市滨海新区人民检察院公诉处;
【分类号】：D922.14

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