爆炸物犯罪司法疑难问题及其解决

爆炸物犯罪的法律规定存在漏洞,刑法理论界对有关爆炸物犯罪的研究欠深、广,导致了司法实践中处理爆炸物犯罪时对犯罪对象、行为、罪数认定及刑罚裁量等出现争议和疑难。认真探讨这些问题,对丰富爆炸物犯罪理论和解决爆炸物犯罪量刑失衡具有重大意义。立法和司法解释对爆炸物的外延不周延,应从社会危害性角度考虑予以解决;对爆炸物犯罪行为认定的疑难,应从各种犯罪行为的本质特点予以认定;对罪数形态认定的疑难,应从把握事后不可罚行为和想象竞合犯等刑法理论的基础上具体分析认定;对于刑罚裁量上的失衡,应从正确认定处罚情节和正确适用司法解释来解决。

The Judicial Puzzle Problems and Solutions of Crime of Explosives

There are loopholes in the provision of law about crime of explosives, and the research about crime of explosives from theoretical point of view is shallow and narrow. All these leads that judicial workers face controversies and problems of the identification of criminal target, criminal behavior, quantity of crimes and measurement of penalty when dealing with crime of explosives. Doing careful research in these fields is significant to enrich the theory of crime of explosives and to solve the problem of sentencing imbalance of crime of explosives. The question that the extension of explosives in legislative interpretation and judicial interpretation is distribute should be solved from the view of social hazard. The controversy of the identification of criminal behavior of crime of explosives should be identified from essential characteristics of various kinds of criminal behavior. The controversy of the identification of crime number shape should be concretely analyzed on the basis of these theories of criminal law, such as afterwards act of impunity, imaginative joinder of offenses. As for the sentencing imbalance, should be resolved from the view of correctly identifying circum- stances of sentencing and correct application of judicial interpretation.