輕罪司法治理下的輕罪定罪規則構建

Construction of Criminal Conviction Rules for Minor Offenses under Judicial Governance Of Minor Offenses

輕罪概念不能僅從立法上關於法定刑輕重設置和司法上關於判決輕重作絕對界定，而應基於刑事政策從犯罪治理意義上作相對界定。在輕罪司法治理維度，輕罪的定罪因較為廣泛地存在把本為行為犯等犯罪既遂形態規則誤認為定罪規則、誤將過失的應知認定為故意的應知、誤把理論學說作為定罪依據等誤區，而加劇了輕罪的司法治理困境。為此，需基於我國刑法立法及其理論原理，構建本土化輕罪定罪規則：區分直接故意與其他主觀方面，分別按直接故意內容或間接故意、過失所支配的結果定罪；基於案件的事實適用刑法所有相關法律規定定罪；絕不基於域外刑法規定及由此形成的刑法理論定罪。

The issue of minor offenses is both a hot topic of current social concern and a pain point in social governance. This is not only because of its large quantity and possession of significant judicial resources, but also because of its criminal labels and the serious accompanying consequences it brings, which can trigger related social problems. Although the issue of minor offenses has become a widely discussed judicial hot topic in both theory and practice, there are misconceptions in defining the concept of minor offenses in practice and theory. However, the basic goal of judicial governance for minor offenses is to adjust criminal policies and judicial systems to alleviate the problem of a large number of minor offenses and their accompanying consequences caused by the addition of administrative violations in legislation. In China, ''minor offenses'' is not a legal concept and has a confusing definition and conceptual use in theoretical, judicial, and criminal governance fields. Taking a comprehensive view of relevant theories and practices, the divergence and controversy of this concept mainly manifest in three aspects: at what level the concept of ''misdemeanor'' is determined, what criteria is used to determine ' misdemeanor, and whether multiple punishments such as statutory punishment or declared punishment are defined as ''misdemeanor'' criteria. Compared to the governance of minor offenses, crimes in China should be divided into two categories: minor offenses and serious offenses. The so-called ''minor offenses'' with a statutory sentence of less than one year of fixed-term imprisonment or the type of punishment should be considered as a type of minor offenses Based on the principle of dialectical theory that unifies form and substance, the ''comprehensive standard theory'' that insists on the unity of form and substance should be more reasonable than the ''form standard theory'' and ''substance standard theory''; the current theoretical and practical propositions of ''less than three years of statutory punishment'' ''less than one year of statutory punishment'' and ''less than three years of declared punishment'' are not reasonable. They should be determined to base on the goal of judicial governance of minor offenses, combined with legislative provisions and criminal trends. In terms of extension, they should be smaller than the scope of ''minor offenses'' in the judiciary, and in terms of connotation, they are only crimes in the legislative and judicial minor offenses that result in a large number of cases and social problems due to the imbalance of crime and punishment in the legislative setting. Therefore, it is determined that the construction of the rules for convicting minor offenses under the judicial governance of minor offenses should address the prominent issues in the current definition and conviction of minor offenses, including the widespread misconceptions of mistaking the completed form rules of crimes such as behavioral offenses as conviction rules, mistaking the knowledge of negligence as intentional knowledge, and mistaking theoretical theories as the basis for conviction, which exacerbate the difficulties in the judicial governance of minor offenses. Based on China's criminal law legislation and its theoretical principles, it should be localized and constructed, including distinguishing direct intent from other subjective crimes and convicting them based on the content of direct intent or the results dominated by indirect intent and negligence, as well as convicting based on the facts of the case and applying all relevant legal provisions of the criminal law, and never convicting based on foreign criminal law provisions and the resulting criminal law theories.