打击报复证人罪若干问题新解

打击报复证人罪应当被定义为:是指对在诉讼中提供于己不利证言的证人实施侵害其合法权益的行为。本罪中所言“证人”,不应仅限于刑事案件中的证人;本罪中的“证人”与诉讼法相关条文中规定的“证人”的含义是一致的,举报人并不必然属于证人;本罪的行为基本方式包括不作为;本罪发生的时间段是诉讼活动开始以后的任何时间;本罪的罪过形式是直接故意。在本罪的认定上,应当注意本罪与报复陷害罪、妨害作证罪之区分,并正确处理本罪的罪数问题。

A tentative study on problems about crime of retaliating against a witness

In this paper,the author's views are: The definition of crime of retaliating against a witness is : it means a act of encroaching on a witness'legal rights and interests,who gives a testimony which is unfavourable to the retaliating person;the "witness" here does not merely mean a witness in criminal proceedings;the meaning of the"witness" here is the same to the meaning of the "witness" in our procedural laws;a person of reporting against someone is not inevitably a witness;the basic patterns of the act about this crime include act of ommission,the happening time of this crime is : anytime after beginning a lawsuit;the pattern of guilty mind of the crime is direct intention.The paper also makes a tentative probe on the differences of crime of retaliating and this crime,crime of impairing giving testimony and this crime,and the quantity of crime about this crime.