公務保護與人權保障平衡下的，襲警罪教義學分析

A Doctrinal Analysis of the Offence of Assaulting Police from the Perspective of Balancing between Protection of Official Duties and Protection of Human Rights

襲警罪的保護法益是人民警察的職務行為。人民警察職務行為的合法性判斷應採用客觀說和行為時標準。人民警察實施沒有違反必要且重要程序要件的瑕疵公務，可以認定為依法執行職務。襲警罪的暴力是作用於人民警察身體的狹義暴力。當輔警與人民警察一起執法並且輔警執法內容符合法律規定時，暴力襲擊輔警的行為成立襲警罪。襲警罪與妨害公務罪是法條競合關系，襲警罪屬於特別法條。行為人將人民警察誤認為普通國家機關工作人員而暴力襲擊的，屬於抽象事實錯誤，成立妨害公務罪。行為人將人民警察合法職務行為誤認為違法時，屬於違法性認識錯誤。暴力襲警造成人民警察輕傷以上後果的，成立襲警罪與故意傷害罪或故意殺人罪等的想象競合犯。行為人實施犯罪後暴力襲警的，前罪與襲警罪實行併罰。從實質犯罪論出發，對輕微的暴力襲警行為不宜入罪。關於暴力襲警的刑法溯及力問題，根據從舊兼從輕原則，應適用舊法認定為妨害公務罪，但量刑應作出限制性的修正。

"The legal interest protected by the offence of assaulting police is the police’s official conduct, the legality of which should be assessed objectively based on the circumstances at the time of the act. If the police constable does not breach necessary and vital procedures, his conduct should be taken as legal. The violence involved in the offence of assaulting police must be physical violence against his person. Where a special constable is lawfully enforcing the law with a police officer, violence against the special constable amounts to the offence of assaulting police as well. An offender’s conduct may amount to the offence of assaulting police as well as the offence of obstructing official duties, and in such a situation, the offender should be convicted of the former as it is a more specific offence compared to the latter. Where the offender mistook a police constable for an ordinary state functionary and violently attacked him, he should be convicted of the offence of obstructing official duties. If the offender mistakenly believed that the police constable was not acting lawfully and such a mistake was avoidable, he should still be liable for the offence of assaulting police. Where an offender assaulted a police constable and caused actual bodily harm, grievous bodily harm or death, he has committed the offence of assaulting police as well as the offence of intentional injury or intentional killing and should be liable for the more serious one of the two offences. Where the offender committed another crime before assaulting police constable, he should be liable for both crimes. From the perspective of the theory of substantive criminalization, minor assaults against police constable should not be a crime. In terms of retrospectivity, the offence of obstructing official duties should be applied to offenders who assaulted police constable before this new offence of assaulting police constable was incorporated into law, but the sentencing should be adjusted in a restrictive manner."