强拿硬要型寻衅滋事罪在立法上存在模糊性,导致了其在司法实践中普遍呈现出扩张适用的趋势。本文旨在厘清对强拿硬要型寻衅滋事罪限缩适用之路径,明确其所保护的犯罪客体是社会公共秩序与公私财产,在客观上,行为应当具有一定程度的暴力...强拿硬要型寻衅滋事罪在立法上存在模糊性,导致了其在司法实践中普遍呈现出扩张适用的趋势。本文旨在厘清对强拿硬要型寻衅滋事罪限缩适用之路径,明确其所保护的犯罪客体是社会公共秩序与公私财产,在客观上,行为应当具有一定程度的暴力与威胁,对当事人的财产处置自由产生一定的强制力控制,并且构成本罪必须具备流氓动机,最后,还要处理好行政违法与刑事犯罪之间的关系,不能将行政违法行为与刑事犯罪的客观行为相等同。There is ambiguity in the legislation of the crime of picking quarrels and provoking troubles by force, which leads to the trend of expanding application in judicial practice. The paper aims to make clear the path to limit the application of the crime of picking quarrels and provoking troubles by force, and makes it clear that the object of the crime to be protected is social public order and public and private property. Objectively, the behavior should have a certain degree of violence and threat, exert a certain degree of coercive control over the parties’ freedom of property disposal, and the crime must have a rogue motive. Finally, it is also necessary to deal with the relationship between administrative violations and criminal crimes, and can not equate administrative violations with the objective acts of criminal crimes.展开更多
文摘强拿硬要型寻衅滋事罪在立法上存在模糊性,导致了其在司法实践中普遍呈现出扩张适用的趋势。本文旨在厘清对强拿硬要型寻衅滋事罪限缩适用之路径,明确其所保护的犯罪客体是社会公共秩序与公私财产,在客观上,行为应当具有一定程度的暴力与威胁,对当事人的财产处置自由产生一定的强制力控制,并且构成本罪必须具备流氓动机,最后,还要处理好行政违法与刑事犯罪之间的关系,不能将行政违法行为与刑事犯罪的客观行为相等同。There is ambiguity in the legislation of the crime of picking quarrels and provoking troubles by force, which leads to the trend of expanding application in judicial practice. The paper aims to make clear the path to limit the application of the crime of picking quarrels and provoking troubles by force, and makes it clear that the object of the crime to be protected is social public order and public and private property. Objectively, the behavior should have a certain degree of violence and threat, exert a certain degree of coercive control over the parties’ freedom of property disposal, and the crime must have a rogue motive. Finally, it is also necessary to deal with the relationship between administrative violations and criminal crimes, and can not equate administrative violations with the objective acts of criminal crimes.
