高空抛物罪的司法适用困境及破解之路

The Judicial Application Dilemma and Cracking Path of the Crime of High Altitude Throwing

摘要: 随着社会经济飞速发展，人口漫溢，城市高楼林立，从建筑物和高空中抛掷物品的现象层出不穷，高空抛物行为已经严重危害民众的出行以及生产、生活，引发社会和司法机关的普遍关注，“头顶上安全”能否得到保障已经成为人民最关心的问题之一。为保护人民群众“头顶上的安全”，《刑法修正案(十一)》新增了“高空抛物罪”，但该罪名存在“高空”“抛”“物品”等构成要件要素含义不明，入罪门槛“情节严重”尚未明确，以及侵害的法益“公共安全”范围不明确等问题。从高空抛物罪的立法目的入手，结合实践为“高空”“抛”“物品”设定标准或形式特征，突破在实践中“情节严重”以及“公共安全”的认定标准不统一的难题，以期为今后该罪的司法适用提供思路借鉴。

Abstract: With the rapid development of society and economy, the population is overflowing, and there are numerous high-rise buildings in cities. The phenomenon of throwing objects from buildings and high in the air is constantly emerging. The act of throwing objects from high altitude has seriously endangered people’s travel, production, and life, causing widespread attention from society and judicial organs. Whether “safety on the head” can be guaranteed has become one of the most concerning issues for the people. In order to protect the safety of the people above their heads, the Amendments to the Criminal Law (11) has added the crime of high altitude throwing. However, the meaning of the constituent elements such as “high altitude”, “throwing” and “objects” is unclear, the threshold for inclusion in the crime is not yet clear, and the scope of the legal interest of “public safety” infringement is not clear. Starting from the legislative purpose of the crime of throwing objects at high altitudes, and combining with practice, setting standards or formal characteristics for “high altitude”, “throwing” and “objects”, and further clarifying the criteria for determining “serious circumstances” and “public safety” can provide ideas and references for the application of this crime in the future.